Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 98CF3696, Frank F. Fasel, Judge.
Geragos & Geragos, Mark J. Geragos and Mark M. Kassabian; The Law Offices of Steven Graff Levine and Steven Graff Levine for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Appellant Jeffrey Alan Hambarian was charged with multiple crimes stemming from his alleged misappropriation of money while he was an officer of various family-owned businesses that collected and recycled trash for the City of Orange (the City). His misdeeds were not only alleged to have caused serious financial harm to the companies he was running, but to the City, as well. As we noted in an earlier opinion, the prosecution essentially accused appellant of “cleaning out the [C]ity’s coffers in the process of cleaning up the [C]ity’s streets.” (In re Hambarian (Oct. 17, 2002, G024659) [nonpub. opn.].) Following a four-month trial, the jury found appellant guilty of various crimes, including grand theft, bribery, tax evasion and money laundering. The trial court sentenced him to 14 years and 8 months in prison and ordered him to pay millions of dollars in fines and restitution. Appellant now contends: 1) The trial court erred in denying his motion for a new trial based on juror misconduct; 2) there is insufficient evidence to support one of the theft counts; 3) the court misinstructed the jury on the bribery count; 4) he did not engage in the crime of money laundering; 5) the court made several sentencing errors; and 6) cumulative error compels reversal. As the Attorney General concedes, the court did make one sentencing error that requires a two-year reduction in appellant’s sentence. Accordingly, we will modify appellant’s sentence to correct the error. In all other respects, we affirm the judgment.
The issue in this earlier case related to appellant’s pretrial bail. We have also rendered decisions regarding appellant’s attempt to recuse the Orange County District Attorney’s Office and his parents’ attempt to rescind a settlement agreement they reached with the City. (See Hambarian v. Superior Court (2002) 27 Cal.4th 826 [affirming this court’s decision that the district attorney’s office did not have a conflict of interest in prosecuting this case]; Hambarian v. City of Orange (Oct. 14, 2004, G033118) [nonpub. opn.] [rescission action]; Hambarian v. City of Orange (June 28, 2006, G035544) [nonpub. opn.] [attorney fees in rescission action].) None of these prior opinions are directly pertinent to this appeal.
FACTS
Appellant was the vice-president of a family-owned company called Orange Disposal Services (ODS), which his father Sam Hambarian started in the early 1950’s. ODS had a contract with the City under which it was paid 10 percent above its costs for providing the City’s trash removal services. Under the contract, ODS was required to submit annual financial statements to the City, which the City used to set its trash collection rates.
Sam Hambarian was a pioneer in the trash hauling business. Along with his wife and sons (collectively referred to as the Hambarians), he built an empire of companies that dominated the trash collection business in the City for several decades. Sam continued to work in the family businesses until his death in 2003.
Over time, the Hambarians created additional companies to keep up with the City’s trash removal needs. Those included Recycle Orange (RO) and its successor Orange Resource Recovery Services (ORRS), of which appellant was director and executive vice-president. ORRS contracted with the City to perform recycling services at a manufacturing facility that was owned and operated by the Hambarians. Like ODS, ORRS was contractually obligated to provide the City with annual financial statements, and the City was required to pay ORRS 10 percent above its operating costs.
Since the compensation ODS and ORRS received from the City was dependent on the companies’ costs, appellant made it a point to pad their expenditures whenever possible. For example, when ordering trucks from the Peterbilt Company, he often requested upgrades that added significantly to the cost of the trucks. Peterbilt included those costs in the price of the trucks, and appellant’s companies paid Peterbilt for them. However, instead of having Peterbilt do the upgrade work, appellant told them he would get the work done by other vendors that he knew. Peterbilt then wrote checks to these vendors and gave them to appellant with this expectation in mind. But rather than using the checks to get the upgrades done, appellant had the checks cashed by third-party intermediaries and pocketed the money for himself.
Other times, appellant canceled orders for Peterbilt parts that ODS had already paid for. When Peterbilt issued refund checks to ODS, appellant had the checks cashed and kept the money.
Appellant also persuaded many of his companies’ vendors to overcharge for goods, or charge for goods they never provided. Then he would have the vendors return the overpayments to him as part of a kickback scheme. The vendors agreed to do this because they were afraid of losing appellant’s business altogether. They were also afraid of getting caught, so appellant supplied them with phony invoices and work orders to keep the scam from being detected.
Many of the kickbacks were in the form of checks that were written by or to the Hambarian companies. Appellant enlisted various individuals to cash the checks for him, and upon doing so, they would return the proceeds, minus a small fee, to appellant. In addition to this check-cashing scheme, appellant also pocketed substantial amounts of cash that were derived from his companies’ scrap metal sales. All told, he stole over two and a half million dollars’ worth of assets that belonged to the Hambarian companies.
In February 1996, appellant met with Ronald Gastelum, who was in charge of negotiating the dumping rates (aka “gate fees”) for the BKK landfill in West Covina. Because the landfill was scheduled to close at the end of the year, Gastelum was offering companies reduced rates to induce them to use the landfill. Appellant caught wind of this, and while negotiating a dumping rate for ORRS, he asked Gastelum if BKK offered “rebates” to its clients. Gastelum said no, but that he could pay appellant a “broker’s fee” for bringing his business to BKK. With that understanding in mind, appellant agreed that ORRS would pay BKK $27 per ton for dumping its trash at the landfill. In exchange, Gastelum agreed to give appellant $7.55 per ton as a broker’s fee.
Appellant ended up pocketing over $600,000 in broker’s fees under the deal. However, he did not disclose any of those fees to the City. So when the City paid ORRS for its dumping costs, as it was required to do under their contract, the City reimbursed ORRS for the full amount of those costs, with no offset for appellant’s broker’s fees.
VERDICT
In counts 1, 2, 3 and 5, the prosecution alleged appellant committed grand theft against both the City and the Hambarian companies. (Pen. Code, § 487, subd. (a).) The prosecution argued the City was a victim as to these counts because appellant’s thefts added to the companies’ costs, which was a key component of their contracts with the City. However, while the jury found appellant guilty of stealing from ODS, ORRS and RO, it did not find him guilty of stealing from the City in regard to these particular counts.
Unless noted otherwise, all further statutory references are to the Penal Code.
As to count 4, the prosecution theorized the City was victimized by the BKK landfill deal because appellant’s broker’s fees increased the amount of money ORRS had to pay in dumping costs, and the City was required to reimburse ORRS for those costs. The jury convicted appellant of grand theft as to this count. As to counts 1 through 5, the jury also found true the allegation that appellant engaged in a pattern of fraudulent conduct involving the taking of more than $500,000 and damaged or destroyed property valued over $2,500,000. (§§ 186.11, subd. (a)(2) & 12022.6, subd. (d).)
In count 6, appellant was charged with committing grand theft against SAH, a sole proprietorship that was operated by his parents (§ 487, subd. (a)), and in counts 7 through 13, he was charged with filing false financial statements on behalf of ODS and ORRS (§ 72). The jury deadlocked on these charges and the court declared a mistrial as to them.
Count 14 alleged appellant committed commercial bribery in connection with the BKK landfill contract. (§ 641.3.) The jury found him guilty of this charge.
In counts 15 through 17, and 20 through 31, appellant was convicted of failing to report the acquisition of corporate property (Corp. Code, § 2255, subd. (a)) and filing tax returns that did not reflect the income he derived from his illegal activities (Rev. & Tax. Code, §§ 19705, subd. (a)(1) & 19706).
The trial court dismissed two additional tax evasion charges, counts 18 and 19.
Appellant was also convicted of 26 counts of money laundering, as alleged in counts 32 thru 57. (§ 186.10, subd. (a).) As to those counts, the jury found true the allegation that the money laundering transactions exceeded $1,000,000. (§ 186.10, subd. (c)(1)(C).)
SENTENCE
The trial court sentenced appellant to a total term of 14 years and 8 months in prison. The court selected count 1 as the principal term, imposing a midterm sentence of two years, plus seven years for the attendant enhancements. The subordinate term consisted of consecutive eight-month sentences (one-third the midterm) on counts 14, 20, 23 and 32, plus a three-year enhancement as to count 32. The court stayed sentencing on the remaining counts and ordered appellant to pay over $10,000,000 in fines and restitution.
I
Appellant contends the trial court erred in two respects in denying his motion for a new trial, which was based on allegations of juror misconduct. First, he claims the court erred from a procedural standpoint by failing to conduct an evidentiary hearing on the motion. And second, he argues the court erred on substantive grounds in finding no prejudicial misconduct occurred. We uphold the court’s decision to deny appellant’s motion for a new trial without an evidentiary hearing.
Grounds for Motion
In support of his motion for a new trial, appellant presented five declarations, the first of which was from Juror Patsy E. Patsy made a variety of accusations against fellow juror Patricia M., who was employed as a court reporter in Los Angeles. Specifically, she alleged Patricia held herself out as an expert on criminal law and was convinced of appellant’s guilt “as soon as we walked into the jury room.” According to Patsy, Patricia was also very forceful during deliberations and tended to be very dismissive and disparaging of anyone who disagreed with her. For example, when Patsy questioned whether the City was a victim in the case, Patricia asked her if she was “‘in here for someone’” or “‘knew something [the rest of the jurors] didn’t know.’” She also insinuated Patsy would get in trouble with the court if she did not go along with the others in voting to convict.
In her declaration, Patsy further alleged that during a break in deliberations, Juror Raul H. picked up a newspaper in the hallway and then immediately put it down because it contained an article about the trial. At that point, she told Raul that appellant “‘could get 20 years’” if convicted. Patricia and another juror, who were standing nearby, asked Patsy how she knew this. Patsy told them that during the first month of trial, she had read a newspaper article that reported appellant was facing 20 years in prison if convicted. In response to this, Patricia said, “‘That’s not going to happen.’” Patsy took this to mean appellant would receive substantially less time if he were found guilty.
At some point during the trial, Patsy also learned that Jury Foreperson Peggy “Ruth” L. had “done something” to appellant’s attorney, Mark Geragos. Patsy asked Ruth about this, and Ruth proceeded to show her how she had “‘flipped off’” Geragos. In her declaration, Patsy did not elaborate on just what Ruth showed her. All she said was that Ruth “cupped her right hand around her left hand to keep the gesture hidden from view.” Patsy surmised that Ruth and other jurors, including Patricia, “did not like [] Geragos ‘right off the bat.’” She also stated that one of the jurors called Geragos a “‘pompous ass’” during deliberations.
The second declaration appellant submitted to the court was from Crystal D., a security guard at the gated community where appellant lived with his family. Crystal also worked part-time at a regional park, where Juror Raul H. was a ranger. Crystal alleged that after the trial started, Raul informed her he was a juror on appellant’s case. He also told her he knew the Hambarians from coaching appellant’s nephew in Little League and from seeing appellant on trash pickup days. Raul asked Crystal how appellant’s family was doing and if they were nice people, and she told him they were.
Raul also talked to Crystal about the trial. He described the prosecution’s witnesses as crooks and liars and said he did not believe appellant was guilty. Although he felt some of the evidence against appellant was “‘eye opening,’” he did not think the prosecution had proved its case. He also told Crystal that appellant’s son Bryce made a “bad impression” on the jury and that he wanted “more answers” after the defense put appellant’s wife Virginia (aka “Ginny”) on the stand. Crystal further alleged that on the Saturday before the verdict was reached, Raul asked her if Virginia had told her whether or not appellant was guilty. Particularly, he wanted to know from Virginia if the charges against appellant “were not true, a little true or completely true,” because if appellant was innocent, “he could be fighting for something he knew was right.” Crystal told Raul it was not her place to ask Virginia about such matters.
After the trial was over, Crystal asked Raul why he had voted guilty. He said “he thought the case might end in a mistrial. But... the case would not end in that manner, a verdict had to be reached, and he was having a hard time continuing to fight for the Hambarians.” Crystal got the impression from Raul that he voted guilty simply because he wanted the case to be over with.
According to Crystal, Raul also told her that Juror Patricia M. “was prejudiced from the beginning and she believed that an arrest meant that you were automatically guilty.” He said it was a mistake for the defense to leave Patricia on the jury because she declared appellant guilty of all charges within the first five minutes of deliberations. Raul told Patricia it was important for them to discuss the evidence before reaching a verdict, but Patricia just said, “‘Whatever.’”
As for Geragos, Raul told Crystal he found him quite likable. But other jurors, including Ruth, resented him because of his work on the Scott Peterson case. Raul said Ruth’s antipathy toward Geragos was so strong that she “flipped [him] off... every time he spoke[.]”
Alternate Juror Linda H. also claimed to have witnessed hostility toward Geragos. In her declaration, she said she was standing outside the courtroom with other jurors when Ruth said “the name ‘Geragos’ and held up three fingers.” Although Linda “was a distance away” when this occurred, she believes Ruth was “flipping [Geragos] off.” On other occasions, Linda heard jurors call Geragos a “womanizer” and comment about his not wearing a wedding ring. This prompted Linda to look up Geragos on the Internet and visit his firm’s Web site. Based on what she saw online, Linda told the other jurors that Geragos was married with children.
Juror Ichiro F. submitted a declaration regarding Geragos, as well. He stated, “I recall hearing [during deliberations] that one of the other jurors was ‘anti Geragos.’ [¶] I do not recall exactly what was said nor do I recall the circumstances in which this comment was said, but I do believe this was in a common area, such as the elevators.”
The final declaration appellant submitted came from Defense Investigator Scott Ross. He said he spoke with Ruth after the verdict, and she denied knowing who Geragos was prior to the start of trial. She also denied being disrespectful of him. She did admit “flipping [someone] off,” but she said it was not Geragos.
Ross spoke with Raul, too. He said that during the trial, he “might have” talked to Crystal about the case and mentioned to her that Ruth had “flipped off” Geragos. He also said that during the first two weeks of trial, he overheard Ruth tell other jurors that Geragos was the lawyer for Scott Peterson and Michael Jackson. Based on this statement, Raul believed Ruth knew who Geragos was before the trial started. Regarding the incident in the hallway during which Patsy and Patricia spoke of appellant’s possible punishment, Raul said that was the only occasion on which he heard the topic of sentencing discussed.
Trial Court’s Ruling
Based on this information, appellant argued he was entitled to a new trial or, at the very least, an evidentiary hearing on the issue of juror misconduct. However, the court was not persuaded. In denying appellant’s request for an evidentiary hearing, the judge said, “I don’t think there are any material disputed issues of fact that can’t be resolved based upon the declarations that have been submitted. You know, you get into an evidentiary hearing in this matter and it is going to turn into a fishing expedition. It just has to.” The court was also concerned that an evidentiary hearing would invariably lead to an examination of the jurors’ subjective mental processes, in violation of Evidence Code section 1150.
As for the merits of appellant’s motion, the trial court found the statements attributed to Raul in the declarations from Crystal and Investigator Ross constituted inadmissible hearsay. And even though Raul committed misconduct by discussing the case with Crystal, there was no evidence he received any extraneous information from her. Describing Raul as a “pro-defense” juror, the court did not think he was influenced to appellant’s detriment by virtue of the conversations he had with Crystal throughout the case.
Addressing the allegations against Patricia, the court found there was no credible evidence she engaged in prejudicial misconduct. In this regard, the court found Patsy’s declaration about Patricia was riddled with inadmissible hearsay and violated the prohibition against the introduction of evidence bearing on a juror’s subjective mental processes. (Evid. Code, § 1150.)
With regard to Patsy, the court was critical of her for reading a newspaper article about the case and discussing the issue of punishment with some of the other jurors. However, it found no resulting prejudice to appellant because the discussion was vague and speculative, and the issue of punishment was never discussed during the course of the jury’s actual deliberations.
Finally, respecting the supposed comments, gestures and bias toward defense attorney Geragos, the court found the allegations rested on inadmissible hearsay and were too vague and ambiguous to support a finding of prejudicial misconduct.
In sum, the trial court determined appellant’s proposed evidence on the issue of misconduct was largely inadmissible, insufficient to warrant an evidentiary hearing and lacking in terms of substantive merit. It therefore denied his motion for a new trial.
Law on Juror Misconduct
A criminal defendant has the right to a trial by an impartial jury in which each juror is capable and willing to decide the case solely on the evidence presented at trial and free of improper influence. (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) To protect this right, the trial court may grant a new trial when the jury “has received any evidence out of court,” engaged in “misconduct by which a fair and due consideration of the case has been prevented,” or reached its verdict “by any means other than a fair expression of opinion.” (§ 1181, subds. (2), (3) & (4).)
However, there are limitations on the type of evidence that may be used to prove a claim of juror misconduct. Under Evidence Code section 1150, “any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.” (Evid. Code, § 1150, subd. (a).) But “[n]o evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Ibid.)
Evidence Code section 1150 thus “prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent.” (People v. Hutchinson (1969) 71 Cal.2d 342, 350.) In fact, no evidence can be used to substantiate a claim of juror misconduct if it reflects a juror’s “reasons for his or her vote” or “their decision making processes.” (People v. Lewis (2001) 26 Cal.4th 334, 389.) Moreover, because Evidence Code section 1150 requires that the evidence be “otherwise admissible,” “‘a jury verdict may not be impeached by hearsay affidavits.’ [Citations.]” (People v. Williams (1988) 45 Cal.3d 1268, 1318-1319, fn. omitted.)
Upon receiving allegations of juror misconduct, the court may choose to “conduct an evidentiary hearing to determine the truth or falsity of [those] allegations..., and to permit the parties to call jurors to testify at such a hearing. This does not mean, however, that a trial court must hold an evidentiary hearing in every instance of alleged jury misconduct. The hearing... should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties’ evidence presents a material conflict that can only be resolved at such a hearing.” (People v. Hedgecock (1990) 51 Cal.3d 395, 419, italics added, fn. omitted.)
Moreover, even if juror misconduct has been shown by competent evidence, it is not necessarily cause for a reversal. Some forms of misconduct are inherently nonprejudicial and others may be harmless when viewed in the context in which they occurred. (People v. Bennett (2009) 45 Cal.4th 577, 626-627; People v. Miranda (1987) 44 Cal.3d 57, 117.) “Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]” (In re Hamilton, supra, 20 Cal.4th at p. 296.)
Juror Raul H.
With these principles in mind, we now consider appellant’s specific claims of misconduct. Although he accuses several jurors of wrongdoing, he singles out Raul as the most egregious offender. He contends Raul engaged in prejudicial misconduct not only by discussing the case with Crystal during the trial, but also by failing to disclose his “Hambarian connections” during voir dire.
Regarding the later allegation, the record shows Raul represented on his juror questionnaire that he has never known appellant or any member of his family on a casual, personal or professional basis. However, later on during voir dire, he informed the court the Hambarian family did sponsor a Little League team he had coached about 15 years ago. Raul said he might have had some contact with appellant during this time, given that appellant’s son or nephew was on the team, but he could not remember for sure. He also said he appreciated appellant’s sponsorship of the team, and it might cause him to favor the defense during the trial. However, upon further questioning by the court and counsel, he said it would not affect his ability to be fair.
Despite Raul’s candor in bringing up the Little League issue, appellant contends he did not go far enough in terms of revealing his familiarity with appellant and his family. He claims Raul also should have revealed that he knew where appellant’s family lived and that he worked with one of the security guards in their community, Crystal D. But Raul was never asked to divulge this information, and it is not the type of information that would reasonably be expected to cast doubt on his ability to be impartial. Therefore, we do not believe he committed misconduct, let alone prejudicial misconduct, in failing to disclose this information during the jury selection process.
Appellant also assails Raul for talking about the case with Crystal during the course of the trial. This was misconduct, to be sure. (§ 1122, subd. (a); In re Hitchings (1993) 6 Cal.4th 97, 118.) But unlike the situation in Hitchings, where the subject juror told a nonjuror during the trial that the defendant deserved to be castrated for his crimes, Raul did not make any statements to Crystal indicating he had prejudged the case against the defense. In fact, what he told her was that he believed appellant was not guilty. Nevertheless, appellant argues Raul’s contacts with Crystal were prejudicial because, even though Raul was initially on his side, he changed his mind and ended up voting to convict because Crystal never told him that Virginia Hambarian believed he was innocent. There are several problems with this argument.
First, it runs afoul of Evidence Code section 1150. It is clear that appellant is trying to use Raul’s statements to show his subjective impressions of the evidence and why he voted the way he did. The Evidence Code prohibits this. (People v. Danks (2004) 32 Cal.4th 269, 302 [citing Evidence Code section 1150, Supreme Court refused to consider portions of declarations that showed what verdict one juror was leaning toward and why another juror voted for the death penalty]; People v. Ozene (1972) 27 Cal.App.3d 905, 910 [“evidence of the mental processes of the respective jurors or the considerations influencing their verdict is inadmissible”] disapproved on other grounds in People v. Gainer (1977) 19 Cal.3d 835, 844.) And, as appellant conceded at oral argument, his claim of juror misconduct cannot succeed if his supporting evidence is inadmissible.
Furthermore, even if Raul’s statements constituted admissible evidence, they do not establish he engaged in prejudicial misconduct. According to Crystal, Raul told her he did not think appellant was guilty, and he did not want to vote in favor of conviction because he did not think the prosecution had proved its case. Crystal also alleged that on the Saturday before the verdict was reached, Raul “wanted to know if the charges against [appellant] were not true, a little true or completely true.” He said that if appellant’s wife Virginia had told Crystal that appellant was innocent, “he could be fighting for something he knew was right.” Then, after the verdict, Crystal asked Raul why he had voted guilty, and he said “he was having a hard time continuing to fight for the Hambarians.”
Appellant contends “the only reasonable interpretation” of these statements is that Raul “sought confirmation of appellant’s innocence from appellant’s wife in order to continue to support appellant despite his belief that the evidence did not prove appellant guilty [and when] he did not receive that confirmation,... he changed his vote shortly thereafter.” What is significant, and completely overlooked by appellant is that evidence was received between those two statements. So, the only reasonable interpretation of Raul’s statement is that evidence in court had now overtaken his belief in defendant, but he was willing to take extrajudicial evidence to help him vote not guilty nonetheless. Certainly we can understand a prosecutor being offended by this, but it is hard to understand how an objection to it was in the interest of appellant.
What’s more, Crystal never asked Virginia about appellant’s culpability because, in her view, “it was not [her] place” to pose such questions. So, to say that Raul’s guilty vote was the product of his failure to receive an assurance of appellant’s innocence from Virginia makes about as much sense as arguing his vote was the product of his failure to receive an assurance of appellant’s innocence from the Pope. Because neither Virginia nor the Pope were ever asked to comment on appellant’s guilt, their failure to assert his innocence cannot be seen as having any effect whatsoever on Raul’s decision to vote in favor of conviction.
That fact is, nothing Raul and Crystal said to each other shows Raul was improperly influenced to appellant’s detriment in this case. If anything, his statements to Crystal and his comments during voir dire suggest he was a very good person for the defense to have on the jury. He held out for not guilty as long as he could. What’s more, he erroneously considered extraneous information that appellant and his family were “nice people.” Appellant’s complaint is that Raul was not given more extraneous information, and that without more extrajudicial reassurances, he was unable to resist the overwhelming tide of evidence against appellant. That’s a slender reed, indeed. Accordingly, the trial court did not err in finding his contacts with Crystal during the trial, although improper, were harmless. Furthermore, because there was no material dispute as to what Raul said to Crystal as far his impressions of the case were concerned, there was no need for the court to hold an evidentiary hearing on that issue.
Juror Patricia M.
Appellant claims Patricia M.’s “prejudgment of the case requires reversal.” The claim stems largely from the declaration of Juror Patsy E., who alleged Patricia “was very forceful in deliberations and had made up her mind that [appellant] was guilty as soon as we walked into the jury room.” Patsy further alleged that Patricia’s “attitude was that as soon [as appellant] received money from a check, he was guilty.” “She did not care whether a witness lied, or received immunity.”
Contrary to appellant’s belief, these allegations do not constitute competent evidence of juror misconduct. Rather, they merely represent one juror’s speculation about the subjective mental processes of another juror. It is well established that the motivation and reasons that bear on a juror’s decision about the case are “beyond the competence of affidavits to show or this court to consider on the issue of jury misconduct.” (People v. Brown (1976) 61 Cal.App.3d 476, 482.)
Appellant also relies on Crystal’s declaration to substantiate his claim Patricia prejudged the case. Crystal alleged Raul told her Patricia “was prejudiced from the beginning and she believed that an arrest meant that you were automatically guilty. [And]... within the first five minutes of deliberations she declared [appellant] guilty of all the charges.” Also, when Raul told her it was important for them to discuss the evidence, Patricia simply replied, “‘Whatever.’” Based on this, Raul believed Patricia’s “mind was made up even before the trial started.”
Unfortunately for appellant, Raul’s impressions of Patricia’s beliefs and thought processes are neither admissible nor convincing on the issue of misconduct. (Evid. Code, § 1150.) And the statements Raul attributed to Patricia cannot be used to prove she prejudged the case because they are simply a verbal reflection of her thought processes. “‘“[T]he subjective quality of one juror’s reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning.” To hold otherwise would destroy the rule... which clearly prohibits the upsetting of a verdict by assailing these subjective mental processes.”’ [Citation.]” (English v. Lin (1994) 26 Cal.App.4th 1358, 1367.)
Although Patricia’s alleged comments cannot be used to show how she decided the case in her own mind, they are admissible as objective evidence bearing on the issue of misconduct. (Evid. Code, § 1150; English v. Lin, supra, 26 Cal.App.4th at p. 1364.) In that regard, appellant contends Patricia’s comments prove she engaged in misconduct by acting in a snide, disrespectful and heavy-handed manner during deliberations. He points out, for example, that Patricia allegedly questioned Patsy’s motivations when Patsy expressed doubts about the sufficiency of the evidence. He also brings up the fact that during deliberations, Patricia sent a note to the judge in which she accused her fellow jurors of basing their decisions on improper considerations.
The note stated, “Some of the jurors are using evidence or facts outside of the evidence in trial [and] creating their own facts to base decisions. Based on this, either I go or they do. Others feel exactly the same way.” At this point of the deliberations, the jury was deadlocked on all but two of the counts. However, the following day the jury informed the court it could continue deliberations, and a few days later it returned its verdict.
Judging by Patricia’s statements, it appears the deliberations in this case were not particularly harmonious. However, in and of itself, that is not cause for great concern. As our Supreme Court has explained, “[J]urors, without committing misconduct, may disagree during deliberations and may express themselves vigorously and even harshly.” (People v. Engelman (2002) 28 Cal.4th 436, 446.) Although Patricia’s comments may have been somewhat intemperate, they did not rise to the level of prejudicial misconduct, and we are not about to begin reversing verdicts because of rudeness or hurt feelings. Patricia’s statements do not reflect that she came to any conclusions about the case prior to its delivery to the jury. And Raul’s and Patsy’s speculation are equally unavailing. They provide no basis for reversal.
Juror Patsy E.
Next, appellant argues Patsy’s conduct in reading and discussing a newspaper article that mentioned appellant’s potential punishment constituted prejudicial misconduct. Again, we disagree.
The law is clear that jurors are not allowed to read any media accounts of the case they are sitting on. (§ 1122, subd. (a).) So, by reading a newspaper article about this case during the trial, Patsy clearly engaged in misconduct. However, according to Patsy, the article stated appellant was facing 20 years in prison if convicted. Far from being prejudicial to appellant, this is the sort of information that could actually give a juror pause about voting to convict. After all, two decades in prison is no small matter, and sometimes even violent offenders are not subjected to such harsh punishment. Considerations of fairness and proportionality could very easily work in an accused’s favor if the jury knows he is facing an extremely long prison sentence.
The real potential for prejudice lay not in the newspaper article’s reference to appellant’s possible punishment, but what happened after Patsy discussed the article with her fellow jurors. In her declaration, Patsy said that when she mentioned to Raul, Patricia and another juror that appellant could get 20 years if convicted, Patricia responded by saying, “‘That’s not going to happen.’” Patsy took this to mean appellant would receive substantially less time if he were found guilty.
Patsy’s interpretation of Patricia’s statement is clearly inadmissible under Evidence Code section 1150. However, the fact Patricia told other jurors appellant would not get 20 years in prison is admissible as an objectively verifiable statement that was not offered for its truth, but to show how it may have corrupted the jury. (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 508.)
Nevertheless, we do not believe there is a substantial likelihood the brief discussion about appellant’s possible punishment prejudiced the defense. For one thing, Patricia never professed to know exactly what appellant would get in terms of a sentence; all she is alleged to have said is that appellant would not get 20 years if he were convicted. The implication is that appellant would get less than 20 years, but again, Patricia did not offer any specifics in that regard. The sheer vagueness of the statement militates against a finding of prejudice.
It could, for example, easily be interpreted as a prediction he would not be convicted.
Appellant claims Patricia’s statement took on added significance because she works in the legal field. (People v. Hill (1992) 3 Cal.App.4th 16, 37 [“statements regarding legal issues carry greater weight, and hence are more likely to prejudice the verdict, when they come from a juror trained in the law”], disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) But Patricia is a court reporter, not a law professor. When we consider that and the fact there is no evidence the issue of punishment was ever discussed during the jury’s actual deliberations, we are convinced Patricia’s statement did not warrant an evidentiary hearing, let alone a new trial. (People v. Hill, supra, 3 Cal.App.4th at pp. 33-41 [juror’s speculative statement that the defendant would receive a very light punishment if convicted found to be nonprejudicial].) No cause for reversal has been shown.
Juror Peggy “Ruth” L.
Appellant’s final allegation of misconduct centers on the conduct of the Jury Foreperson, Peggy “Ruth” L. Specifically, he accuses Ruth of 1) lying about not knowing who Geragos was before trial (which is what she indicated on her juror questionnaire and what she told Investigator Ross after the case was finished), and 2) making an “obscene gesture” toward Geragos during the trial. Neither accusation withstands scrutiny.
Appellant bases the lying accusation on Raul’s statement to Investigator Ross that during the first two weeks of trial, he heard Ruth state that Geragos had represented Scott Peterson and Michael Jackson in their respective cases. Raul surmised from this statement, as appellant does now, that Ruth knew who Geragos was before the trial got under way. But it is entirely possible Ruth learned of Geragos’ involvement in the Peterson and Jackson trials after she was selected as a juror in this case. And even if Ruth did know who Geragos was before the trial started, her failure to divulge this information is not the sort of misconduct that would lead to a finding of prejudice.
It is certainly not as serious as when a juror fails to divulge her knowledge of facts about the case, or fails to reveal she has been a victim of the same type of crime for which the defendant is on trial, which is what happened in the cases cited by appellant. (See In re Hitchings, supra, 6 Cal.4th at p. 119 and People v. Diaz (1984) 152 Cal.App.3d 926.) In those situations, the jurors’ knowledge and experience taints their ability to fairly judge the case in a way that is qualitatively different from a juror’s knowledge of the celebrity of the defendant’s attorney. While it is always improper for jurors to conceal pertinent information during voir dire, the relatively minor nature of Ruth’s alleged concealment does not suffice to prove appellant was denied his right to a fair trial. (Cf. In re Bolden (2009) 46 Cal.4th 216 [juror’s failure to disclose his prior relationships with a potential witness and an actual witness did not establish he was biased against the defendant or prejudged his case]; see generally People v. Miranda, supra, 44 Cal.3d at p. 118 [a new trial based on juror misconduct will not be granted “where the misconduct was of such a trifling nature that it could not in the nature of things have been prejudicial to the moving party”].)
Appellant’s allegation that Ruth made an “obscene gesture” toward Geragos is a little difficult to pin down, but hardly warrants a hearing. None of the jurors who described the alleged gesture described it as “obscene.” Rather, they said they saw or heard about Ruth “flipping off” Geragos. That does imply a certain gesture of disgust involving the raising of one’s middle finger. But according to Alternate Juror Linda H., Ruth held up “three fingers” when making the gesture toward Geragos. So, it’s hard to tell exactly what Ruth did.
The incident brings to mind an episode involving United States Supreme Court Justice Antonin Scalia. Upon leaving church one day in 2006 “he was asked about the impact of his religion on his judicial decisions [and, in response, he] placed his fingertips under his chin and flicked them outward. The Boston Herald reported that the gesture was obscene. Justice Scalia wrote a letter to the editor insisting that it was merely an Italian way of indicating, roughly, ‘I could not care less.’” (Cohen, Reining in Justice Scalia, New York Times (Apr. 26, 2006)
Appellant argues this is precisely why the trial court should have held an evidentiary hearing on the issue. However, it appears that whatever gesture Ruth made towards Geragos, it was more likely attributable to “her momentary exasperation with the proceedings” than the “result of ‘improper or external inferences.’” (People v. Kaurish (1990) 52 Cal.3d 648, 694 [alleged derogatory remarks toward defense counsel did not warrant judicial inquiry into the issue of juror bias].) This was, after all, an extremely long trial. It would not be surprising to us if, during the course of the proceedings, some of the jurors experienced negative feelings toward one or more of the attorneys involved in the case. While it was wrong of Ruth to actually express her feelings in this regard, rudeness is not misconduct, and there is not a strong possibility this isolated event amounted to prejudicial misconduct. Therefore, it was not cause for an evidentiary hearing or a new trial.
While Raul allegedly told Crystal that Ruth flipped off Geragos “every time he spoke,” that phrase smacks of hyperbole, and the other jurors described what Ruth did in terms of a one-time event. In any event, we have no occasion to disturb the trial court’s implied finding that, whatever gesture Ruth made toward Geragos, she only made it once, and we doubt that it would support a misconduct reversal even if done repeatedly. Jurors often report disliking the attorney for whose side they voted against. This is really a tempest in a teapot.
Having sorted through all of appellant’s allegations of juror misconduct, we are convinced the trial court properly denied his motion for a new trial. We have no occasion to disturb the court’s ruling.
II
Appellant also contends there is insufficient evidence to support his conviction for grand theft in count 4. That count was based on the broker’s fee appellant negotiated in connection with ORRS’ dumping contract at the BKK landfill in West Covina. Although the City was contractually required to reimburse ORRS for its dumping costs, it was not informed that some of those costs were attributable to appellant’s broker’s fee. The prosecution theorized appellant’s failure to disclose this information to the City amounted to a material misrepresentation, and the jury agreed. It was the only count in which the jury found the City was victimized by appellant’s conduct.
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)
The crime of theft occurs when a person “feloniously steal[s], take[s], [or] carr[ies]... away the personal property of another[.]” (§ 484, subd. (a).) Appellant admits he engaged in “self dealing” by securing a broker’s fee in connection with the BKK landfill deal. However, he claims this did not amount to theft from the City because the fee did not belong to the City. While recognizing the City reimbursed ORRS for its dumping costs, appellant argues there is no evidence those costs were affected by his broker’s fee, and therefore the City was not victimized by his receipt of the fee. The record shows otherwise.
BKK representative Ronald Gastelum testified the standard dumping rate at the BKK landfill was about $30 per ton. However, because the landfill was going to be closing within a few months of his negotiations with appellant, Gastelum agreed to let ORRS dump trash there at the rate of $27 per ton. Not only was that less than what BKK usually charged, it was also less than what ORRS was paying in dumping fees at the time. That may have been why appellant set out to procure a share of the dumping fee for himself, but that is beside the point. The critical issue is whether the agreed-upon price of $27 per ton would have been lower without appellant’s broker’s fee, because if it would have been, then the City would not have had to fork over as much money as it did when it reimbursed ORRS for its dumping costs.
While appellant denies his broker’s fee added to ORRS’ dumping costs, Gastelum testified BKK was only looking to get about $19 per ton in dumping fees from ORRS. He also said that, prior to negotiating the ORRS deal with appellant, BKK had never paid a broker’s fee in connection with a solid waste contract. However, appellant gave him the impression he would not agree to a deal unless BKK paid him a broker’s fee. So, Gastelum agreed to pay appellant $7.55 for every ton of trash ORRS dumped at the BKK landfill. Asked whether the agreed dumping rate of $27 per ton reflected appellant’s broker’s fee, Gastelum said it did. And asked what the rate would have been without appellant’s broker’s fee, Gastelum said he would have offered ORRS a contract in the neighborhood of $18 per ton. Based on Gastelum’s testimony, it is readily apparent appellant’s broker’s fee added to ORRS’ dumping costs, which, in the end, were paid for by the City.
Despite the fact appellant pocketed roughly 25 percent of these costs for himself, he argues he was not guilty of theft by false pretenses because he did not make any false representations to the City regarding ORRS’ dumping costs. In so arguing, he relies on People v. Davis (1934) 137 Cal.App. 378, which involved a real estate deal that was brokered by the defendant. Specifically, the defendant arranged for his client to receive a parcel of property in exchange for $10,000 worth of consideration. As it turned out, the seller of the property, a mortgage company, only wanted $7,431.25 for the parcel. So, when the deal was consummated, the defendant pocketed the extra $2,568.75 for himself. The defendant’s client complained the defendant had misrepresented the price the mortgage company wanted for the property, but at trial she admitted the defendant had told her the company was only getting $7,431.25 from the sale. Furthermore, a representative from the mortgage company testified he had no qualms about the defendant personally profiting from the sale. Under these circumstances, the court found there was no misrepresentation by the defendant, and therefore, it overturned his conviction for grand theft. (Id. at pp. 382-385.) That is hardly our case.
Appellant was not nearly as forthcoming in his dealings as the defendant was in Davis. ORRS had a written contract with the City to recoup its dumping costs, but appellant never informed the City that roughly 25 percent of those costs were attributable to the broker’s fee he was getting from BKK. Instead, he billed the City for the full amount of ORRS’ dumping costs. This effectively resulted in the City overpaying ORRS for its dumping costs, with appellant personally benefiting in the process. By failing to disclose his broker’s fee to the City, appellant misrepresented the true cost of ORRS’ dumping expenses. His failure to disclose his self-dealing distinguishes this case from Davis and justifies the jury’s finding he committed grand theft against the City. There is substantial evidence to support the jury’s finding in this regard.
III
Appellant’s next contention centers on count 14, which alleged he committed commercial bribery within the meaning of section 641.3. The prosecution theorized appellant violated this section by procuring a broker’s fee from Gastelum in connection with the BKK landfill deal. This fee, or bribe as the prosecution called it, is what allegedly motivated appellant to give ORRS’ business to BKK. However, appellant claims that no matter how corrupt his intentions may have been in taking the bribe, he could not be found guilty of commercial bribery unless Gastelum acted with corrupt intentions as well. He faults the trial court for failing to instruct the jury to this effect, but we see no error in this and no reason to disturb appellant’s bribery conviction.
Under section 641.3, subdivision (a), “Any employee who solicits, accepts, or agrees to accept money or any thing of value from a person other than his or her employer, other than in trust for the employer, corruptly and without the knowledge or consent of the employer, in return for using or agreeing to use his or her position for the benefit of that other person, and any person who offers or gives an employee money or any thing of value under those circumstances, is guilty of commercial bribery.” (Italics added.)
Appellant reads the italicized clause as an independent element of commercial bribery. Under this reading, a person who corruptly accepts money in connection with a business deal cannot be found guilty of commercial bribery unless the person who gave him the money also acted corruptly. This interpretation would favor appellant because, although he plainly acted corruptly by pocketing a broker’s fee in connection with the BKK landfill deal, there is scant evidence Gastelum acted corruptly in giving him the fee. (In fact, there is little evidence to suggest that Gastelum knew that appellant was keeping the fee for himself.)
However, this interpretation does not comport with the language and structure of the statute. By its terms, section 641.3 simply describes the two different ways the statute can be violated. It contemplates two possible perpetrators of the crime of commercial bribery. First, there is the “employee,” who corruptly receives the bribe. And then there is the “other person,” who pays the bribe. Either of these two described persons could be in violation of the statute.
If, as appellant argues, the “other person” was required to have acted corruptly, the subject clause that we have italicized above would not refer to “any person.” Instead, it would refer to the “other person” previously identified in the statute. For instance, it would say something like “under circumstances in which that other person offers or gives an employee money or any thing of value....” Wording of this sort would suggest the Legislature intended to require proof of corrupt intent on behalf of the bribee and the briber.
But that is not how the statute is worded. The actual wording of the subject clause suggests it was not meant as an additional requirement for the bribee’s culpability, but to broaden the scope of the statute to include those individuals who make commercial bribes to garner business. Indeed, that is how one court has viewed the statute. In CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 643, the court stated section 641.3 “provides that either (1) an ‘employee’ who solicits or receives money or anything of value (other than in trust for his ‘employer’), ‘corruptly’ and in return for using his position to benefit another person, or (2) the person who offers or gives the ‘employee’ money or anything of value ‘under those circumstances,’ is guilty of commercial bribery. [Citation.]” (Italics added.)
Although the CrossTalk court was not called on to discuss the precise issue presently before us, its description of section 641.3 supports the conclusion the subject clause was intended to signify that those people making commercial bribes, like those receiving them, are subject to its terms. This interpretation also comports with the obvious purpose of the statute, which is to stem corruption in private business dealings. Therefore, we conclude that, in order to obtain a conviction against appellant for commercial bribery, it was not necessary for the prosecution to prove that both he and Gastelum acted corruptly. Rather, the prosecution only had to establish that appellant acted in this manner. Because section 641.3 does not require reciprocal intent between the parties, the trial court’s instructions were not defective for failing to include such a requirement. No grounds for reversal have been shown.
IV
Appellant also challenges his convictions for money laundering. Those convictions were based on the fact he misappropriated checks from his companies, turned them over to third parties for cashing, and then pocketed the proceeds himself. As bad as that may sound, appellant contends it did not constitute money laundering because the funds were not derived from an inherently illegal activity, such as prostitution or drug trafficking. We disagree and affirm his convictions.
Under section 186.10, subdivision (a), “Any person who conducts or attempts to conduct a transaction or more than one transaction within a seven-day period involving a monetary instrument or instruments of a total value exceeding five thousand dollars... through one or more financial institutions (1) with the specific intent to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of any criminal activity, or (2) knowing that the monetary instrument represents the proceeds of, or is derived directly or indirectly from the proceeds of, criminal activity, is guilty of the crime of money laundering....”
Initially, the prosecution only charged appellant with violating subdivision (a)(2) — the “knowledge” theory — of section 186.10. However, after all the evidence in the case was presented, the trial court allowed the prosecution to amend the information to include the “specific intent” theory set forth in section 186.10, subdivision (a)(1). In light of this amendment, the trial court instructed the jury on both theories of liability.
Appellant does not challenge the amendment, per se. But he does challenge the applicability of both the knowledge and specific intent theories to his case. His position is that 1) both theories require proof the proceeds at issue were derived from an illegal source, and 2) because the checks he misappropriated came from legitimate sources, i.e., the Hambarian companies and the companies they did business with, he was wrongfully convicted of money laundering. He contends that offense simply does not apply “where the source of money is legitimate, but is wrongfully converted by cashing the check.”
Appellant is correct that the government is required to trace the subject funds to an illegal source when it proceeds under the knowledge theory set forth in section 186.10, subdivision (a)(2). Indeed, with respect to that theory, “the statutory language provides that the monetary instrument or instruments must be composed of at least $5,000 of proceeds from criminal activity; that is, there must be proof that the monetary instrument involved $5,000 of criminal proceeds[.]” (People v. Mays (2007) 148 Cal.App.4th 13, 31.)
However, “[t]he words of the statute are also clear that when the defendant conducts a $5,000 plus transaction with the intent to promote or facilitate criminal activity, the defendant is guilty of money laundering” under the specific intent theory contained in section 186.10, subdivision (a)(1). (People v. Mays, supra, 148 Cal.App.4th at p. 30.) “Under those circumstances, there is no need to trace any funds since the offense and requisite mens rea of a specific intent to promote or facilitate criminal activity do not require the money be derived from an illegal source.” (Ibid.)
Nor is the prosecution required to prove the defendant “plowed back” the funds into the criminal activities he was allegedly carrying out. Some federal courts have alluded to a plow back requirement in interpreting the federal money laundering statute. (See 18 U.S.C. § 1956(a)(1)(A); United States v. Jackson (7th Cir. 1991) 935 F.2d 832.) However, these decisions are neither binding on us (People v. Burnett (2003) 110 Cal.App.4th 868, 882), nor do they appear to foreclose a money laundering conviction in the absence of evidence that the defendant plowed back, or reinvested, the subject proceeds into his illegal activities (United States v. Manarite (9th Cir. 1995) 44 F.3d 1407, 1416 [“‘Plowing back’ of the gains into the enterprise is not necessary”]; United States v. Paramo (3rd Cir. 1993) 998 F.2d 1212, 1218 [same]).
That said, the question remains whether there was sufficient evidence to support the trial court’s decision to instruct the jury on both theories of liability. As for the specific intent theory, it readily appears that appellant laundered the money from his various check cashing schemes with the intent to promote or facilitate criminal activity. Not only did the laundering allow him to conceal the fact he was stealing from his companies, it also paved the way for his subsequent tax dodges.
Appellant asserts tax evasion does not qualify as a “criminal activity” for purposes of section 186.10. However, the statutory scheme defines “criminal activity” broadly to include any “criminal offense punishable under the laws of this state by death or imprisonment in the state prison....” (§ 186.9, subd. (e).) This expansive definition of criminal activity encompasses the very tax crimes that appellant was convicted of in this case. (See Rev. & Tax. Code, §§ 19705, subd. (a)(1) & 19706, set forth at p. 32, fns. 11 & 12, post.)
Appellant also argues the taking of employer funds for personal use cannot form the basis for a money laundering conviction because if it did, every such taking “would constitute money laundering as soon as the theft proceeds passed through a bank.” That is not correct. The laundering of employer funds is only criminal when the defendant intends to further some criminal activity. This requires proof of some connection between the alleged laundering and the criminal activity at issue. (See, e.g., United States v. Brown (5th Cir. 1999) 186 F.3d 661, 669 [reversing federal money laundering convictions where the nexus between the alleged laundering and the defendant’s illegal activity was essentially “nonexistent”].)
In this case, there was a clear connection between appellant’s money laundering and the criminal activity that generated the money. In fact, if appellant had not been able to launder the checks he was stealing, it is doubtful he would have been able to carry on his various criminal enterprises for as long as he did. We agree with the Attorney General that, based on all the evidence presented, the jury could reasonably find that appellant laundered the stolen checks “with the specific intent to further his ongoing scheme of embezzlement, theft, kickbacks, and tax evasion.” As such, the trial court rightfully instructed on the specific intent theory set forth in section 186.10, subdivision (a)(1).
The knowledge theory also finds ample support in the record. Under this theory, the prosecution was required to show that, in orchestrating his check cashing scheme, appellant knew the checks “represent[ed] the proceeds of, or [were] derived directly or indirectly from the proceeds of, criminal activity....” (§ 186.10, subd. (a)(2).) Appellant argues proof of this requirement was lacking because the subject checks were issued in connection with his business operations, and he was running a “legitimate business.” While the checks were written on legitimate business accounts, they were clearly derived from appellant’s criminal behavior. As a matter of fact, the prosecution established that all of the subject proceeds came from the fraudulent business practices appellant carried out. That being the case, appellant cannot hide behind the fact that part of his business was legitimate. Since he was using his legitimate business operations as a platform for his unlawful activities, the trial court was fully justified in instructing the jury on the knowledge theory contained in section 186.10, subdivision (a)(2). No instructional error or grounds for reversal have been shown.
V
Turning to appellant’s sentencing claims, it is clear two of them merit little discussion. As to count 32, the parties agree that instead of imposing a full, three-year enhancement under section 186.10, subdivision (c)(1)(C), the trial court should have reduced the enhancement to one year pursuant to section 1170.1. We will modify appellant’s sentence accordingly.
That section provides the subordinate term for a consecutive offense, such as the money laundering offense in count 32, “shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (§ 1170.1, subd. (a).)
Appellant also contends the imposition of consecutive sentences without a jury trial on the alleged aggravating circumstances violates the Sixth Amendment for the reasons explained in Cunningham v. California (2007) 549 U.S. 270. However, our Supreme Court has rejected this claim (People v. Black (2007) 41 Cal.4th 799, 820-823), and therefore, so must we. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant recognizes as much and candidly admits he raises the issue solely to preserve it for federal court review.
Appellant’s final sentencing claim relates to counts 20 and 23, both of which pertain to his 1997 tax returns. Relying on section 654, appellant contends the trial court should have stayed imposition of sentence as to one of the counts because they both related to the same event, i.e., the reporting of his 1996 income. However, the relatedness of the events alleged in counts 20 and 23 is not the test for determining the applicability of section 654, which, by its terms, prohibits multiple punishment for “[a]n act or omission that is punishable in different ways by different provisions of law[.]” (§ 654, subd. (a).)
Rather, the key to applying section 654 is ascertaining the defendant’s objective behind his actions. Generally, if all of the defendant’s crimes “were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.) But if the defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) Multiple punishment is also proper where the defendant’s intent for each criminal act is similar, but manifested on consecutive occasions. (People v. Britt (2004) 32 Cal.4th 944, 952.)
With that in mind, we now examine the factual basis for the counts at issue. Ronald Jeffrey, appellant’s certified public accountant, testified that when appellant filed his initial 1997 tax return on April 8, 2007, he failed to include $466,203.72 in revenue from his check cashing scheme, and $269,300.50 in revenue from his broker’s fee on the BKK landfill deal. These omissions formed the basis for count 23, which alleged appellant filed a false return with the intent to evade taxes. (Rev. & Tax. Code, § 19706.)
Revenue and Taxation Code section 19706 provides, “Any person or any officer or employee of any corporation who, within the time required by or under the provisions of this part, willfully fails to file any return or to supply any information with intent to evade any tax imposed by Part 10... or Part 11..., or who, willfully and with like intent, makes, renders, signs, or verifies any false or fraudulent return or statement or supplies any false or fraudulent information...” is subject to specified fines and/or imprisonment.
Jeffrey also testified that on July 8, 1997, appellant filed an amended return which reflected the money he received for his broker’s fee. However, the amended return did not include the money appellant derived from his check cashing scheme. This omission was the primary basis for count 20, which alleged appellant filed his amended return believing it was false. (Rev. & Tax. Code, § 19705, subd. (a)(1).)
Revenue and Taxation Code section 19705, subdivision (a)(1) punishes as a felon any person who “[w]illfully makes and subscribes any return, statement, or other document, that contains or is verified by a written declaration that it is made under penalty of perjury, and he or she does not believe to be true and correct as to every material matter.”
Based on this record, it is evident that appellant’s overarching objective in committing the crimes alleged in counts 20 and 23 was to skirt his various income tax responsibilities. But it is equally clear that he perpetrated the crimes on consecutive occasions, over a period of several months. Under these circumstances, the trial court could “narrowly interpret[] the length of time [appellant] had [the] specific intent [to evade payment of his taxes], and thereby [find] similar but consecutive objectives permitting multiple punishment. [Citations.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) Just as a robber cannot escape multiple punishment for committing robberies on consecutive days, neither can appellant escape multiple punishment for committing tax evasion over a period of several months. Like the robber, appellant may have had one goal in mind — financial gain — but the separation in time between his acts justifies the court’s decision to punish him for each act. Therefore, we have no occasion to disturb the court’s imposition of consecutive sentences as to counts 20 and 23.
VI
Lastly, appellant contends the cumulative effect of the trial court’s errors rendered his trial fundamentally unfair and compels reversal. However, we have detected but one error in appellant’s trial, and that error relates to a single, correctable component of appellant’s sentence. Other than that particular mistake, there is no basis for disturbing the judgment in this case.
DISPOSITION
As to count 32, the term for the enhancement imposed pursuant to section 186.10, subdivision (c)(1)(C) is reduced from three years to one year, resulting in a total prison sentence of 12 years and 8 months for appellant. The clerk of the trial court is directed to prepare a corrected abstract of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: SILLS, P. J., O’LEARY, J.
SILLS, P. J., Concurring.
While I have signed and concur in the majority opinion, I write separately to register my continued skepticism about the major financing of prosecutions by deep pocket victims in fraud cases. (See Hambarian v. Superior Court (2002) 27 Cal.4th 826, 844 [“In Eubanks,] we too recognized the risk that financial assistance from purported victims raised ‘an obvious question as to whether the wealth of the victim has an impermissible influence on the administration of justice’ and whether such a system would deserve or receive the confidence of the public.”].)
After People v. Eubanks (1996) 14 Cal.4th 580.
While a majority of our Supreme Court held the conflict in this case did not justify disqualification, it did not give carte blanche approval to victim financing of prosecutorial investigations. Said the majority, “The provision of substantial financial assistance by crime victims thus raises important and difficult policy questions.” (Hambarian, supra, 27 Cal.4th at p. 844.) The majority went on to say, “In this case, we hold only that the superior court did not abuse its discretion in finding that the District Attorney need not be disqualified for accepting the assistance of a forensic accountant employed and compensated by the City, the alleged victim.” (Id. at pp. 844-845.) As Justice Moreno pointed out in his dissent, “a disabling conflict of interest is demonstrated when the victim’s financial contributions ‘are of a nature and magnitude likely to put the prosecutor’s discretionary decisionmaking within the influence or control of an interested party.’” (Id. at p. 851 (dis. opn. of Moreno, J.).)
All that said, as the majority opinion well demonstrates, this defendant was convicted fair and square.