Opinion
G052314
09-20-2017
THE PEOPLE, Plaintiff and Respondent, v. SHAINE JOSEPH LAVOIE, Defendant and Appellant.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Joy Utomi, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 06HF0973) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed as modified with directions. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Joy Utomi, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Shaine Joseph Lavoie of forgery (Pen. Code, § 470, subd. (d), (all statutory citations are to the Penal Code unless otherwise designated), theft from an elder (§ 368, subd. (d)), writing a nonsufficient funds check (§ 476a, subd. (a)), 10 counts of securities fraud (Corp. Code, § 25401, subd. (a)) and 12 counts of grand theft (§ 487, subd. (a)).) The jury also found property loss exceeded $150,000 (§ 12022.6, subd. (a)(2)), and that Lavoie engaged in aggravated white collar crime (§ 186.11, subds. (a)(1), (2)). Lavoie contends the jury erroneously convicted him of two counts of grand theft from Brandon Wells (counts 28 and 29) because he acted with a single intent and overarching scheme to steal. He also argues the court erred in failing to stay (§ 654) concurrent terms for grand theft, and writing or delivering a bad check against Wells. For the reasons expressed below, we agree with Lavoie's contentions and will modify the judgment accordingly. In all other respects the judgment is affirmed.
I
FACTUAL AND PROCEDURAL BACKGROUND
Lavoie's appellate claims concern only three of his convictions (counts 28-30) involving one victim. We therefore provide only a brief overview of the facts.
In 1992, Lavoie cofounded a successful surf apparel company with a childhood friend. In 2003, after disagreements with another business partner, Lavoie and his original partner left to form a new company. Beginning in 2003, Lavoie persuaded friends and acquaintances to invest in various business schemes, including purchasing closeout brand name merchandise (e.g., Diesel, Banana Republic) for resale at a profit. He assured investors the deals were "bonded" and he was investing his own money.
Lavoie enhanced his scheme by presenting investors with purported spreadsheets, purchase orders, and photographs of merchandise. He persuaded investors to roll over their returns into other deals. He manufactured various explanations for the delay in closing deals. He postdated checks to investors, many of which bounced. To keep his scheme going, Lavoie repaid disgruntled investors with funds obtained from new investors. During this period, Lavoie and his wife spent lavishly on unrelated business and personal items. Lavoie also assisted a girlfriend with rent and bought her luxury items.
Following trial in May 2015, the jury convicted Lavoie as noted above. In July 2015, the trial court imposed a prison sentence of 19 years and eight months. It also ordered him to pay victim restitution of $826,950.
II
DISCUSSION
A. Merger of Grand Theft Convictions (Counts 28 and 29)
Lavoie contends his two grand theft counts involving the victim, Brandon Wells, (counts 28 & 29) merge under People v. Bailey (1961) 55 Cal.2d 514 (Bailey) because the evidence showed he acted with a single intent and overarching scheme to steal Wells's money. We agree.
Wells met Lavoie in 2006 while working for a firm doing graphic design work for Lavoie's clothing company called Emdieo. Around November 2006, Lavoie approached Wells about doing design work and investing in a new T-shirt brand called Agnus for a Japanese company. He showed Wells a contract to supply merchandise to the Japanese entity, and explained the project required each participant to invest $3,000 to produce clothing samples. In early December 2006, Lavoie sent Wells an e-mail laying out the terms of the agreement and specifying how each would profit from the deal. Wells prepared a contract along the lines discussed in the e-mail, specifying a project completion date in January 2007. Lavoie and Wells signed the agreement, and Wells gave Lavoie $3,000 in cash and later supplied the design work for the project.
The contract also specified Wells, who was working and going to school part time, would receive weekly "bonus" checks of $200. Wells received some of these payments, although he could not recall precisely how many.
Sometime in January 2007, Lavoie asked for an additional investment of $1,200 for Agnus, explaining he would use the money to have samples made for hats, belts, and accessories. Wells gave Lavoie $1,200 in cash. When Wells did not receive the payments specified in the contract, Lavoie claimed "the wire transfer [of funds] hadn't come through." In early April 2007, Lavoie gave Wells a $15,000 check drawn on a personal account reflecting the return on Well's investment. Lavoie called Wells later the same day and asked him not to deposit the check because the money "hadn't come through yet." Wells refused Lavoie's request to return the check. Other evidence disclosed Lavoie's bank account was no longer open when he wrote the check in April 2007. Wells never received any additional money.
The information charged Lavoie with committing two acts of grand theft against Wells, corresponding to the $3,000 payment in December 2006 (count 28), and the $1,200 payment in January 2007 (count 29).
Relying on Bailey, Lavoie asserts there is insufficient evidence he committed two theft offenses. In Bailey, the defendant made a single misrepresentation enabling her to obtain a series of fraudulent welfare benefits. Each welfare payment was less than the threshold amount for grand theft, but the total exceeded it. The Supreme Court held a single grand theft charge was proper because the defendant committed the thefts "pursuant to one intention, one general impulse, and one plan." (Bailey, supra, 55 Cal.2d at pp. 518-519.) The court noted "[w]hether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (Id. at p. 519.)
After Bailey, appellate courts routinely barred multiple convictions for grand theft when the individual thefts arose from a single plan or scheme, even where each theft was separate and distinct and constituted grand theft on its own. (See e.g. People v. Nilsson (2015) 242 Cal.App.4th 1, 18-21 (Nilsson) [court reversed multiple grand theft convictions under Bailey finding a single overarching scheme to steal money from a library by overbilling for services; court rejected the Attorney General's position a change in the strategy for overbilling constituted a new scheme]; People v. Kronemyer (1987) 189 Cal.App.3d 314, 327-328 [lawyer deposited funds from a client's estate into four of his personal bank accounts; court reversed separate grand theft convictions under Bailey's single-plan single-offense rule]; People v. Packard (1982) 131 Cal.App.3d 622, 626 [evidence supported only a single plan or scheme even though defendant submitted a series of false invoices over a three-year period]; People v. Richardson (1978) 83 Cal.App.3d 853, 868 [reversing three of four counts of attempted grand theft based on attempting to obtain payments on four fraudulent warrants]; People v. Sullivan (1978) 80 Cal.App.3d 16, 21 [reversing eight of nine related counts of grand theft based on receipt of a series of cashier's checks pursuant to a single fraudulent scheme]; see In re Arthur V. (2008) 166 Cal.App.4th 61, 69 [acts occurred within a very brief time period, in the same approximate location].)
In People v. Whitmer (2014) 59 Cal.4th 733, 739 (Whitmer) the Supreme Court reexamined the holding in Bailey. There, the manager of a motorcycle dealership arranged for the fraudulent sales of vehicles to fictitious buyers. (Id. at pp. 735-736.) The transactions typically involved different vehicles and different fictitious buyers, and occurred on different dates. (Ibid.) Whitmer held "a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme" and even if the thefts were similar. (Id. at pp. 735, 741.) But Whitmer declined to apply its holding retroactively to thefts committed before its decision, noting a "long, uninterrupted series of Court of Appeal cases [had] consistently held that multiple acts of grand theft pursuant to a single scheme [could not] support more than one count of grand theft," and its holding was "an unforeseeable judicial enlargement of criminal liability for multiple grand thefts." (Id. at p. 742.)
We must apply the Bailey rule because the thefts in this case occurred before July 2014. (Whitmer, supra, 59 Cal.4th at p. 742.) Lavoie argues he "was acting pursuant to a single fraudulent scheme and a single intent to steal money from Wells at all times. . . . First, the December 2006 and January 2007 thefts occurred within a month of each other, which reduced the significance of the separateness of the two transactions. [Citation.] Second, even though the first theft was for Agnus t-shirts, and the second one was for Agnus accessories, in the end, appellant's goal was to take money from Wells, as he had done with his other friends and colleagues. Therefore, even if the second transaction involving a different type of Agnus-related product could be considered a change in appellant's strategy, there was still only one scheme and one plan, which made the dual convictions improper."
Lavoie also correctly notes the evidence and verdicts involving the other transactions supports the existence of a single fraudulent scheme. The jury found the loss exceeded $150,000 in counts 1 through 18, 20 and 21, but none of the named victims in those counts individually suffered a loss of over $150,000. Consequently, the jury's finding must have been based on the theory that Lavoie utilized a "'common scheme or plan'" in bilking his victims. (See CALCRIM No. 3220 [jury may add together loss suffered by each victim to determine whether total losses to all victims exceed $150,000 where the prosecution proves the defendant intentionally took property in each crime and the losses arose from a common scheme or plan].) The jury also found true the aggravated white collar crime enhancement in counts 1 through 21 which required proof of a "pattern of related felony conduct" (CALCRIM No. 3221). In making this finding, the jury concluded Lavoie committed at least two felonies that had "the same result or similar purpose, result, principals, victims, or methods of commission, or [were] otherwise interrelated by distinguishing characteristics, and that [were] not isolated events." (CALCRIM No. 3221.)
The jury's special findings supports the conclusion Lavoie utilized a single plan in stealing from Wells. Lavoie admitted to one of the other victims, Thomas Wycech, he had no intention of repaying any of his friends and no evidence suggests Lavoie intended to act differently toward Wells. Indeed, Lavoie employed with Wells some of the same misreprentations he made to the other investors.
Thus, the evidence, when examined through the prism of Bailey, compels the conclusion Lavoie acted pursuant to a single scheme, "all motivated by one intention, one general impulse, and one plan," to take money from Wells. (Bailey, supra, 55 Cal.2d at pp. 518-519.) His two acts of theft from the same victim both related to purported investments in the same fictitious venture and occurred close in time to each other. Lavoie employed a virtually identical method in committing the thefts. The evidence reflects his acts against Wells formed part of an overarching fraudulent scheme to persuade other friends and colleagues to invest in a business venture, with no intention of returning their money. Consequently, under Bailey's analysis, Lavoie's acts do not show a "distinct" intent. (See People v. Jaska (2011) 194 Cal.App.4th 971, 985 [in determining whether Bailey merger applies reviewing court considers whether the defendant acted pursuant to a plot or scheme, stole a defined sum of money or particular items of property, committed the thefts in a short time span, and employed a single method to commit the thefts]; see Nilsson, supra, 242 Cal.App.4th at pp. 18-21 [rejecting contention a change in overbilling strategy constituted a new plan or scheme].) We therefore reverse Lavoie's grand theft conviction in count 29. B. Section 654
Lavoie also contends section 654 precludes punishment for both grand theft and writing or delivering a bad check (count 30) as to Wells. The trial court imposed a consecutive eight-month term for grand theft and a two-year concurrent term for the bad check offense.
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one." In addition to prohibiting multiple punishment for a single act, section 654 precludes multiple punishment where there is a course of criminal conduct comprising indivisible acts. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor. If all the offenses are incidental to or are the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once. (See People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.) But if the "defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.'" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) Whether section 654 applies is a question of fact for the trial court, and we must uphold the court's determination if supported by substantial evidence. (People v. Kurtenback (2012) 204 Cal.App.4th 1264, 1289.)
Lavoie argues he "harbored a single intent and acted pursuant to a single plan to take money from Wells without any intention of repaying him, when he convinced Wells to give him $3,000 in December 2006 and an additional $1,200 the following month, and he continued his dealings with Wells with the same intentions when he wrote him the non-sufficient funds check in April 2007 [from a closed account], which was only a few months later. . . . [¶] . . . [T]here was no evidence that appellant had any objective other than to take Wells' money as he had done so with all of his other friends and associates. Therefore, he should receive only one sentence for Wells . . . ."
We conclude each act of grand theft against Wells formed part of a single plan to steal from him. Lavoie's intent in writing a check on the closed account was part of the same criminal plan. As Lavoie explains, he "approached all the victims with the same representations and promises, avoided paying all of them as long as possible and wrote several bad checks in the process, and moved on to a new person whenever the trust was broken to the point of no return . . . ." We agree. Substantial evidence does not support an inference of separate intents or goals justifying the concurrent term imposed for count 30.
III
DISPOSITION
The judgment is modified (§ 1260) to reverse the conviction for grand theft (§ 487, subd. (a)) as charged in count 29, and to stay the two-year concurrent term for writing or delivering a bad check (§ 476a, subd. (a)) pursuant to section 654. The trial court is directed to dismiss count 29, and to prepare an amended abstract of judgment and to forward it to the appropriate correctional authorities. The judgment is affirmed in all other respects.
ARONSON, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.