Opinion
A151724
07-07-2020
THE PEOPLE, Plaintiff and Respondent, v. ALMA PEREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FCR306161)
Alma Perez was convicted by a jury of 11 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 Perez to ten years in prison and ordered her to pay restitution. Perez contends there was insufficient evidence to support her convictions; the prosecution failed to prove it brought the case within the statute of limitations; and the court imposed an erroneous two-year sentencing enhancement. We affirm.
BACKGROUND
In light of the limited issues raised on appeal, we will not provide a detailed recitation of the underlying facts. Instead, we will only discuss the facts relevant to the resolution of the appeal. Other material facts will be added in the course of our discussion of the specific issues raised.
In May 2008, Perez, Lori Arzamendi, and Mindy Baransky formed Grand Trine LLC, an investment business. In October 2008, Perez, Arzamendi, and Luther Feltus-Curry formed another company called Philanthropy LLC. Grand Trine owned Philanthropy.
Feltus-Curry was Perez's co-defendant at trial. He was convicted of 27 felonies related to the investment scheme. In People v. Feltus-Curry, Case No. A152555 [filed July 7, 2020] [nonpub. opn.], we affirmed those convictions.
Luther Feltus-Curry was hired to work as a marketing representative to sell securities in the name of Grand Trine and Philanthropy. Generally, he told the potential investors their funds would not be put at risk and insured, and that they would receive returns pursuant to a specific rate and schedule. He informed them their principal investments 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 monies were used to fund a variety of other seemingly improbable investment programs, including joint ventures and "private placement programs" at banks. The funds were also used for what appears to be personal expenses, transferred to other financial institutions or withdrawn.
Eventually, many of the investors were told their money was gone. For the most part, the principal investments were never returned.
On March 14, 2014, a felony complaint was filed against Perez and co-defendant Feltus-Curry and warrants issued for their arrest. The amended information charged Perez with 17 felonies: 7 counts of violating Penal Code section 487, subdivision (a) (grand theft), 9 counts of violating Corporations Code sections 25401 (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)(3) and an excessive taking enhancement under Penal Code 12022.6, subdivision (a)(2) were also alleged.
In 2017, the matter was tried to a jury. Perez moved for acquittal under Penal Code section 1118.1 on statute of limitations grounds. Two of the charges were dismissed. The jury convicted Perez of 11 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 Perez to a prison term of 10 years. Perez appeals the judgment.
DISCUSSION
A. Substantial Evidence of Fraudulent Securities Sales and
Securities Fraud
Perez argues there is insufficient evidence to support her convictions for securities fraud and the sale of securities by false statement or material omission.
" '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.) 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.)
Perez was convicted of fraudulent securities sales and securities fraud in violation of Corporations Code sections 25401 and 25541 respectively in connection with the promissory notes Grand Trine and Philanthropy issued to individual investors. Section 25401 prohibits the offer or sale of a security "by means of a written or oral communication which includes an untrue statement of material fact or omits to state a material fact necessary in order to make the statements made, in the light of circumstances under which they were made, not misleading." (Corp. Code, § 25401.) Section 25541 prohibits willfully employing "any device, scheme, or artifice to defraud in connection with the offer, purchase, or sale of any security," or willfully engaging "in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with the offer, purchase, or sale of any security." (Corp. Code, § 25541.)
For each offense, a person is guilty if they knew "of the falsity or misleading nature of a statement or of the materiality of an omission" or were criminally negligent in "failing to investigate and discover them." (See People v. Simon (1995) 9 Cal.4th 493, 507-522.) Criminal negligence "refers to a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless." (People v. Salas (2006) 37 Cal.4th 967, 971, fn. 2, internal quotation marks omitted.)
There was sufficient evidence from which the jury could conclude Perez knew of false or misleading statements or was criminally negligent in failing to uncover that victims relied on such statements when investing in Grand Trine and Philanthropy. Perez co-founded Grand Trine and was its corporate secretary, a vice-president, and then chief financial officer. She was also the authorized signatory for the fictitious entity that managed Grand Trine. She co-founded Philanthropy and served as its president. She prepared the welcome letters and the promissory notes Feltus-Curry provided to investors. These promissory notes told investors of quarterly payouts, indicated that investments were "insured with a fidelity bond," and assured them their "funds are never put at risk." She controlled the bank accounts for both companies which were the repositories for investor funds and access to how the money was spent. Bank records indicated those funds were used to pay for restaurants, gas, and personal expenses. They also showed substantial sums wired to fictitious entities Perez created to hold her ownership interests in Grand Trine which were in turn used to pay personal expenses. She took part in decisions about the various schemes and programs into which Grand Trine and Philanthropy invested and even signed off on certain investments. Perez knew that Grand Trine and Philanthropy failed to receive the returns expected from a number of investments and that anticipated earnings never materialized. There was no evidence Perez attempted any due diligence regarding the placement programs or joint ventures or other investments into which they moved investor funds. This was sufficient evidence to support the convictions for fraudulent securities sales and securities fraud.
Perez contends there "is simply no evidence" that she knew victims were induced to invest in Grand Trine and Philanthropy based on false statements or material omissions or that she was criminally negligent in failing to investigate and discover them. Even without direct evidence of what she knew, there was enough evidence of criminal negligence to support the convictions. Perez was an officer of both Grand Trine and Philanthropy who controlled the bank accounts of both entities and had a say in how and where they each made investments. Yet there is no evidence she attempted to vet any of the private placement programs or other investments into which Grand Trine and Philanthropy placed investor funds. The jury could reasonably deduce her criminal negligence from these circumstances.
B. Substantial Evidence of Grand Theft
The jury convicted Perez of four counts of grand theft by false pretenses against victims Lilah B., Gwendolyn D., Dan F., and Ida R. Perez argues there is insufficient evidence to support each of these convictions. We disagree.
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.)
Here, there is no dispute that Perez prepared the Grand Trine and Philanthropy promissory notes used by Feltus-Curry to lure in investors and which contained false statements. Nor is there any dispute that all four victims transferred money to Grand Trine or Philanthropy in reliance on promises made by Feltus-Curry and contained in the promissory notes.
The disputed issue is whether there is sufficient evidence of Perez's intent to defraud. "Intent to defraud is a question of fact. It may be, and usually must be, inferred circumstantially." (People v. Taylor (1973) 30 Cal.App.3d 117, 121.) "An intent to defraud . . . may be inferred from the acts or omissions of the accused, or from the surrounding circumstances." (People v. Leon (1958) 163 Cal.App.2d 791, 793.)
The record shows Perez co-founded Grand Trine, served as a corporate officer, opened its bank account and was the sole signatory over Grand Trine's assets. Perez also co-founded Philanthropy and was its president. As with Grand Trine, she was a signatory on its bank accounts that showed investor funds were used for a variety of purposes not disclosed and unrelated to the investments. According to Grand Trine and Philanthropy bank records, investor funds were spent on personal expenses, restaurants, gas, and credit cards. Substantial sums wired to fictitious entities Perez created to hold her ownership interests in Grand Trine were also used on personal expenses. Moreover, there was evidence that incoming investor funds were being used for payouts to previous investors. This is sufficient evidence of Perez's intent to defraud to support the grand theft convictions.
Perez argues that because she made no direct false statements to the individual investors or failed to disclose material information the absence of any direct contact is somehow exculpatory. It is not. The circumstantial evidence of her intent was also sufficient to sustain these convictions against Perez as an aider and abettor, another basis for liability argued by the prosecution and presented to the jury. "[T]he law imposes criminal liability upon all persons 'concerned' in the commission of a crime. . . . A person is 'concerned' and hence guilty as an aider and abettor if, with the requisite state of mind, that person in any way, directly or indirectly, aided the actual perpetrator by acts or encouraged the perpetrator by words or gestures." (People v. Nguyen (1993) 21 Cal.App.4th 518, 529.) For that reason, "the same criminal liability attaches whether a defendant directly perpetrates the offense or aids and abets the perpetrator." (People v. Montoya (1994) 7 Cal.4th 1027, 1038-1039.)
Reviewing the record in the light most favorable to the judgment, there is sufficient evidence to support Perez's conviction for these charges as a principal or as an aider and abettor. There is no dispute that Perez helped form the companies that issued the promissory notes to investors, controlled their bank accounts, and developed the promissory notes that were used by Feltus-Curry in his marketing. Based on the evidence discussed above, the jury could reasonably infer that she knew investor funds would not be invested, insured, or protected as they were represented.
Perez also contends there is no evidence the promissory notes contained false statements and that she reasonably relied on others more knowledgeable and experienced with securities and financial matters for information about the investments. No. A defendant's statements may be actionable if made in reckless disregard for their truth. (People v. Phillips (1960) 186 Cal.App.2d 231, 240.) Even if she did not know the representations to investors were false, as discussed above, there was enough evidence for the jury to infer she was criminally reckless.
C. Statute of Limitations
Perez argues that it was never proven that she was timely prosecuted for the charges involving Lilah B., Dan F., and Mark J. She contends the trial court erred when it denied her motion for acquittal based on the statute of limitations because there was insufficient evidence of the date the prosecution commenced and each of the victims knew or were suspicious of fraud outside the limitations period. She contends the jury verdicts against her suffer this same fatal defect. On all points, we disagree.
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 period for grand theft and fraud does not commence until the discovery of the offenses. (Pen. Code, § 803, subd. (c).) Penal Code section 801.5 requires that any 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 completion 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, Perez and her co-defendant Feltus-Curry moved under Penal Code section 1118.1 for a judgment of acquittal on all counts against her on the grounds of insufficient evidence that prosecution was timely under the four-year the statute of limitations. 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 granted the 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 14, 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 . . . ."
Perez's counsel did not address the statute of limitation in closing arguments. The trial court's jury instructions regarding the statute of limitations applied equally to the charges against her.
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 against Perez on 11 counts.
We shall not reverse the court's denial of Perez's acquittal motion or the jury's convictions. 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." (Posten, supra, 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. (Id. at p. 821.) The court observed that "the failure to plead and prove facts showing timely commencement of the action was an error of jurisdictional proportions." (Id. at p. 821.) 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 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 11 guilty verdicts against Perez, the jury impliedly found the charges against her were timely prosecuted, that is, the prosecution began within four years of when her victims must or should have known of the crimes. The issuance of the warrant for Perez's arrest on March 14, 2014 was not disputed. Without objection, the jury was instructed the arrest warrant against Perez issued on March 14, 2014, the same day the complaint was filed. 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 Perez'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 Perez's motion for acquittal under section 1118.1, the jury's verdicts comported with the parties' arguments and the court's instructions and should not be reversed. (See id.; Castillo, supra, 168 Cal.App.4th at p. 377.)
Perez asserts that the prosecution failed to introduce evidence regarding when the prosecution against her commenced. She says for the trial court to properly deny the acquittal motion and to affirm the jury's conviction, there must have been evidence in the record as to when the prosecution commenced, and no such evidence existed. "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.) Perez does not reasonably dispute that the warrant for her arrest was issued on March 14, 2014. Perez'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 the crimes. We will not reverse her convictions for untimely prosecution when the date the prosecution commenced is clearly stated 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 her criminal conduct within the limitations period and the claims were timely brought.
The court's ruling on Perez's section 1118.1 motion for acquittal further underscores both her 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 Perez'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.
There was also evidence from which the jury could reasonably decide the charges against Perez involving Lilah B., Dan F., and Mark J. were timely prosecuted after they discovered her crimes. Perez says all three victims admitted that they knew or were suspicious of the fraud more than four years before the prosecution commenced. Even if these victims had suspicions about the status of their investments before March 14, 2010, their bare suspicions may not have triggered the limitations period, nor mean that the charges involving these victims were not timely. " '[D]iscovery of a loss by the victim alone is insufficient to trigger the running of the limitations period: "Literally, . . . discovery of a loss, without discovery of a criminal agency, is not enough.' [Citation.]" [Citations.] The question is whether there is sufficient knowledge that a crime has been committed." (People v. Petronella (2013) 218 Cal.App.4th 945, 956.) Just when these victims actually learned of the fraud and whether, with reasonable diligence, they could have discovered it any earlier, were questions for the jury to decide. (See id.) Substantial evidence supports the jury's findings that the charges were brought within the limitations period.
Lilah B. had known Feltus-Curry from church for decades and believed him to be "a man of integrity." She did not know a lot about investments and trusted Feltus-Curry would put her money were it would grow. After she invested $55,000 in Philanthropy in 2009, Feltus-Curry provided her financial statements showing the growth of her investment. She explained she had done some research, found out "that it wasn't what it was supposed to be," and called Feltus-Curry to meet. While she "[did not] know the exact date," Feltus-Curry told her her money was gone "after 2010."
Dan F., who invested his nearly $105,000 retirement bonus in 2008, knew Feltus-Curry for decades from church. He was not worried about losing his investment "because [he] had known [Feltus-Curry] for quite some time" and "figured he was on the up and up" and had "known him long enough to trust him." Feltus-Curry provided him financial statements showing the growth of his investment. When he asked Feltus-Curry about payouts, Feltus-Curry told him over the course of a year they "would be coming soon." Dan F. said it was "around 2011, actually" when he realized his money was probably gone, which is when Feltus-Curry told him so. That year, he went to the authorities. When asked in cross-examination whether it was "fair to say . . . [he] already knew it was gone," Felder responded, "How could I know?" He reiterated, "2011 is when [he] realized" his money was gone.
Mark J. knew Feltus-Curry through a mutual friend. Between 2008 and 2009, he invested tens of thousands of dollars. It was anywhere from January through April 2010 when Feltus-Curry told him he could not withdraw funds from his investment that made him feel "something wasn't right." In an ensuing conversation Feltus-Curry told Mark J., "No, your money is not gone."
Feltus-Curry, who most of these victims knew personally and regarded as a trusted advisor, assured all three victims of the soundness of their investments. A jury could reasonably conclude that assurances from Feltus-Curry would not have led Lilah B. and Dan F. to believe they were victimized by their church pastor whom they had known for decades. (See, e.g., Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942, 966 ["Even if the plaintiff discovers some suspicious circumstances, his reliance is reasonable if the defendant allays his doubts with further assurances."].) Even though Mark J. was a more recent acquaintance, his testimony that Feltus-Curry told him sometime between January and April 2010 that his money was not gone was also enough to toll the running of the statute of limitations. Under these circumstances, a jury could reasonably conclude that none of these victims would have been on notice of fraud or a crime until after March 14, 2010, or within the limitations period.
D. Enhancement under Former Penal Code Section 12022.6
When Perez 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 Perez took, damaged, and destroyed property in excess of $200,000 under section 12022.6 subdivision (a)(2) to be true. The trial court imposed, then stayed, 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, Perez argues her two-year term for the section 12022.6 enhancement should be stricken because her case is not yet final. She invokes In re Estrada (1965) 63 Cal.2d 740, 747 (Estrada) and People v. Hajek and Vo (2014) 58 Cal.4th 1144 (Hajek) to support her 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 at pp. 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 Perez, who committed her crimes before the sunset. Repeal of section 12022.6 is not grounds to strike the two-year sentence enhancement.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.