Opinion
C075914
08-29-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID ARNOLD SOUZA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F7455)
A jury convicted defendant David Arnold Souza on 21 counts of theft by false pretenses and found true various enhancement allegations. The trial court sentenced him to 18 years in prison.
Defendant now contends (1) there was insufficient evidence to support his convictions on 11 of the 21 counts, (2) the trial court should have imposed only one Penal Code section 186.11 sentencing enhancement, and (3) he is entitled to additional presentence credit.
Undesignated statutory references are to the Penal Code.
We conclude the evidence is sufficient to support the convictions, but we will modify the judgment to strike the imposed but stayed section 186.11, subdivision (a)(3) enhancement and to award additional presentence credit. We will affirm the judgment as modified.
BACKGROUND
When defendant arrived in Redding in the spring of 2007 with $70 in his pocket, he planned to sleep in his van and pray at the Bethel Church and School of Supernatural Ministry (Bethel). He met child psychologist James Mitchell at Bethel and told him he was planning an ambitious children's charity project that he intended to fund with the proceeds of divinely-inspired day trading. Defendant had never day traded before. Mitchell gave him $500, a cell phone, a laptop computer and an air card; he also provided him housing, first in his own home and later in a rental house Mitchell owned. In July, after defendant reported great investing success, Mitchell gave him $7,000 to invest on Mitchell's behalf. Mitchell invested another $25,000 with defendant in mid-August. In January, after defendant gave Mitchell about $25,000 of "profit," Mitchell invested another $7,000.
Mitchell's mother cashed in a $12,000 certificate of deposit and gave the cash to defendant because defendant said he could provide better returns. Defendant later said her investment was worth $48,000. Mitchell also introduced defendant to Michael and Terri Brown. The Browns lived with defendant in a Redding house owned by Mitchell while Michael attended Bethel. The Browns gave defendant $1,500 and were pleased a few months later when defendant said the value of their investment had grown to about $50,000; when they asked for $8,000 from their earnings at the beginning of 2008, defendant gave them $10,000.
Another roommate, Bethel student Thomas Anthony, said defendant told him his $15,000 investment had increased to $57,000 within a few months. And ministry student Brian Garcia said defendant told him his $200,000 investment had increased to $350,000 in four and a half months. At trial, defendant denied telling anyone there had been gains on their investments. He said he did not actually do any day trading, but talked about returns from his "paper trading," tracking the movement of securities he picked but did not buy because he did not have a good internet connection. Defendant acknowledged that he developed a reputation at church as an "investment guru."
Defendant set up a Nevada corporation he called D. A. Souza Investments, L.L.C. He sold "seats" in the corporation for $100,000, planning for seat-holders to participate in long-term investment projects.
Nick Thornhill was a Bethel student with a Master's degree in Business Administration. He had only $4,500 to invest, but defendant agreed he could buy a seat because Thornhill was adding "sweat equity." Thornhill prepared a marketing brochure for D.A. Souza Investments featuring data provided by defendant; it showed a rate of return of 79 percent for the last half of 2007 and a projected rate of return of 158 percent. Defendant acknowledged receiving $4,500 from Thornhill, but he did not give Thornhill an accounting of his investment and returned none of it. Thornhill introduced defendant to Thornhill's father Bruce. Bruce Thornhill invested $100,000 on February 29, 2008, but got nothing back.
Defendant told Linda Raquinio that an $80,000 investment would be enough to buy a seat because she would soon earn the remaining $20,000 from his day trading on her behalf at a promised rate of $4,000 per month. Defendant acknowledged receiving $80,000 from Raquinio, knowing it came from the sale of her home. Raquinio got no documentation on how her investment was doing and no contract from defendant; she received no returns and got none of her investment back.
William Ebe gave defendant $15,000 based on defendant's promise to provide returns within six months. Ebe got nothing back. At about the same time, Bruce and Sarah Jones also sent defendant $15,000. Defendant provided nothing in return.
Richard Schmidt and his wife invested $128,000 with defendant in April of 2008, although defendant told them they would have to invest $250,000 to buy a seat. They got nothing back from defendant.
Defendant's roommate, Thomas Anthony, set up a meeting with defendant and two Bethel administrators. The administrators warned students that defendant's financial practices were not sanctioned or condoned by Bethel. Apparently there were no new investors after the warning.
The Securities and Exchange Commission (SEC) launched an investigation into defendant's activities, eventually obtaining a $930,000 default judgment against him. In January 2009, defendant admitted to the SEC that he accepted about a million dollars for investment but invested none of it.
In late 2010, the People charged defendant with 25 counts of felony theft by false pretenses. Defendant admitted at trial that he accepted the amounts alleged (more than $600,000) from the 13 named victims, and he confirmed that he spent the money on personal expenses and charitable contributions, but did not invest it.
The jury found defendant guilty on 21 counts of theft by false pretenses. (§ 532, subd. (a).) It found true a special allegation of total property damage exceeding $200,000 under section 12022.6, subdivision (a)(2), and it also found true an allegation that defendant committed white collar crimes exceeding the dollar limits in section 186.11, subdivisions (a)(2) [over $500,000] and (a)(3) [$100,000 to $500,000].
The trial court sentenced defendant to 18 years in prison, awarded 155 days of presentence credit (104 days of custody credit and 51 days of conduct credit), and ordered defendant to pay victim restitution along with various fines and fees.
DISCUSSION
I
Defendant contends there is insufficient evidence to support his convictions on 11 of the 21 counts.
"Every person who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, . . . and thereby fraudulently gets possession of money or property . . . is punishable in the same manner and to the same extent as for larceny of the money or property so obtained." (§ 532, subd. (a).) "Larceny" may be read as "theft" (§ 490a) and theft of money or property valued at $950 or more is grand theft. (§ 487) When a defendant's false statement is not in writing, it must be proven at trial "by the testimony of two witnesses, or that of one witness and corroborating circumstances." (§ 532, subd. (b).)
The crime has three elements: (1) defendant's false representation to the owner of property; (2) defendant's intent to defraud the owner; and (3) the owner's transfer of the property to defendant in reliance on the representation. (People v. Miller (2000) 81 Cal.App.4th 1427, 1440.) Reliance may be inferred from all the circumstances if the defendant's false representation had a material influence on the property owner, even if it was not the sole motivating factor for the transfer. (Id. at p. 1441.) A pattern of conduct toward similar victims employing the same type of scheme and the same manner is sufficiently corroborative to support a conviction. (Id. at p. 1442.) Reliance may be inferred by words or by conduct. (People v. Randono (1973) 32 Cal.App.3d 164, 174.) A perpetrator's conduct violates the statute when "it is calculated to mislead," even when the conduct is silence. (Id. at p. 178.)
We uphold a criminal conviction against a challenge to the sufficiency of the evidence if the record, viewed in a light most favorable to the prosecution, supports a finding by any rational trier of fact that the essential elements of the crime were established beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We presume the existence of every fact that could reasonably be deduced from the evidence. (Johnson, at p. 576.)
Defendant specifically claims the evidence is lacking as to victims Gloria Mitchell, Dale Hopkins, John and Laura Touya, Bruce and Sarah Jones, William Ebe, Nick Thornhill, Richard and Danielle Schmidt, Linda Raquinio and Bruce Thornhill. We address each in turn.
A
Defendant challenges his conviction for defrauding Gloria Mitchell. He acknowledges receiving nearly $12,000 from her and he does not contend he returned any of it. But because Ms. Mitchell did not testify, he claims she did not rebut his assertion that he made no promises to her.
A fraudulent promise that induces reliance need not be explicit. (People v. Randono, supra, 32 Cal.App.3d at p. 178.) James Mitchell said his mother liquidated a $12,000 certificate of deposit and gave the proceeds to defendant because defendant promised he could do "a lot better" for her than the bank. The record establishes defendant's scheme to portray himself as a savvy investor who promised to provide generous returns. James said his mother heard defendant's boasts about extraordinary returns in a number of conversations. Although defendant testified that he always said he was only "paper trading" (keeping track of how his chosen stocks performed without actually investing money), his roommate, Anthony Thomas, said defendant talked often about his trading activities and regularly made statements in the presence of eight or ten people such as, "I made $17,000 in the stock market this morning" in a "super confident" and "very believable" fashion. Nick Thornhill heard similar conversations.
A rational trier of fact could have accepted James Mitchell's statement that defendant either directly told his mother he would provide better returns than her bank or he implied it by statements made to others in her presence, intending that she and others would give him cash in reliance on his proclaimed trading expertise. Defendant offers no alternative explanation for accepting the money. The evidence was sufficient to support the verdict.
B
Defendant challenges his convictions on three counts of theft from Dale Hopkins. Defendant returned none of Hopkins' investment, but he claims he did not seek Hopkins out as a potential investor.
At trial, Hopkins did not recall defendant explicitly asking for money or mentioning particular rates of return. But Hopkins said he believed defendant was successfully day trading and when he asked defendant to invest on behalf of Hopkins, defendant agreed to "start an account" for him.
Defendant alleges his constitutional rights were violated because the prosecution did not introduce Hopkins' checks or other written proof of Hopkins' investment. But defendant acknowledged accepting $10,000 from Hopkins. And there was no evidence that the Hopkins money was given or accepted for any purpose other than participation in the same investment scheme described by the other witnesses. A rational juror could conclude that Hopkins would not have made two investments of $2,000 and another for $1,000 in quick succession, as alleged in the challenged counts, unless defendant had first made false statements like those he made to Mitchell and others. Whatever defendant may have said to Hopkins, defendant knew he had a reputation as a successful investor and he accepted investment capital from Hopkins and others when, in fact, he was making no investments at all. Silence that is purposely misleading is a false statement under the Penal Code. (People v. Randono, supra, 32 Cal.App.3d at p. 178.) The cited evidence was sufficient to support the three challenged convictions involving Hopkins.
C
Defendant contends his conviction for theft of $10,000 from John and Laura Touya must be overturned because John did not testify at trial and Laura admitted she had no recollection of hearing defendant make specific promises about investments or returns.
Laura explained that John was working in North Dakota at the time of trial. Laura participated in discussions with defendant about investing, but her husband had other discussions with defendant outside her presence before they gave defendant the money. She testified that she and her husband believed defendant would be investing in the stock market on their behalf, in contrast to defendant's testimony that the money was a gift. Defendant did not return any of the money. According to defendant, he objected at trial to hearsay testimony about what John said, and Laura's statement about the intent to invest was admitted only for her state of mind, leaving no direct evidence of a false promise.
John was a student at Bethel. Funds for the September 2007 check to defendant came from the sale of the family business. Without speculating on conversations between defendant and John, a rational juror could have credited Laura's statement that she would not have agreed to give defendant such a large sum of money but for the confidence she and John had that defendant would ably invest it. The implied investment promise established by Laura's testimony was corroborated by the testimony of the many other victims who also expected defendant to invest their money because he falsely promised to do so. This evidence was sufficient to support the jury's verdict.
D
Defendant challenges the sufficiency of the evidence to support his conviction for theft of $15,000 from Bruce and Sarah Jones.
According to Bruce, defendant told him about an investment project with possible "big gains" and dividends likely within a year. Defendant acknowledged receiving the money but argues that if Bethel leaders had not warned students and parishioners against investing with him, he would have found profitable investment projects. Thus, defendant claims the prosecution did not refute his claimed intention to invest once his investment pool reached two million dollars.
However, defendant cites no evidence that he ever told anyone his investment promises were conditioned on raising two million dollars. And his 2009 letter to investors asked forgiveness for "the misleading statements that might have induced [them] to invest in D. A. Souza Investments, LLC." Sufficient evidence supports the conviction on count 14.
E
Defendant challenges his conviction on count 15 involving the $15,000 theft by false pretenses against William Ebe. Defendant claims Ebe knew defendant was not day trading and signed an investment agreement with a term of two years. Defendant argues he could have profitably invested with more time.
But Ebe testified that defendant told him he could expect a return in six months. The evidence is sufficient to support the conviction on count 15.
F
Defendant next challenges his conviction on count 20 involving a $4,500 theft by false pretenses against Nick Thornhill. He says Thornhill did not rely on promises because he went on trips with defendant to see potential real estate investment projects and expected his money to be invested over a period of two years. But defendant acknowledges evidence that he made false statements about his day trading successes. A reasonable trier of fact could find that Nick Thornhill relied on those false statements. The evidence is sufficient to support the conviction in count 20.
G
Defendant challenges his conviction in count 21 for theft of $128,000 from Richard and Danielle Schmidt on April 17, 2008. He argues Richard understood that defendant would be investing in a number of projects and not just the stock market. But Richard said defendant promised a rate of return between 8 and 10 percent; not only did he and his wife receive no income, they lost their entire investment. There was sufficient evidence to support a conviction on count 21.
H
Defendant challenges his conviction for the February 29, 2008 theft of $80,000 from Linda Raquinio. She said he promised to add $20,000 to her $80,000 account from earnings on day trading so she could be a "seated investor" and that it would be "easy" to provide a return of $4,000 per month to meet her living expenses. Based on defendant's representations, Raquinio expected to receive the returns in two to three months. Defendant argues he was "forced to shut down by the church" before he could pay Raquinio, suggesting there was no proof his representations were false when Raquinio relied on them. But a reasonable trier of fact could conclude he purposely misled Raquinio and she relied on the misrepresentation. There was sufficient evidence to support the conviction on count 22.
I
Defendant challenges his conviction on count 25 for fraudulently obtaining $100,000 from Bruce Thornhill. He contends most of the information on which Thornhill relied did not come directly from defendant but from Thornhill's son Nick, and the prosecution failed to prove Nick acted as an agent for his father.
Bruce Thornhill testified that the idea of investing with defendant was initiated by his son, but he also said he spoke with defendant personally before making a decision. After speaking with defendant, Bruce said he and his wife anticipated receiving a regular stream of income to meet the projected long-term medical expenses of his chronically ill wife. On this record, it was not necessary to prove that Nick was an agent. A reasonable trier of fact could find reliance on defendant's false promises as alleged in count 25.
In summary, there was substantial evidence to support each of the convictions of theft by false pretenses challenged by defendant.
II
Defendant next contends the trial court should have imposed only one section 186.11 sentencing enhancement.
"Any person who commits two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct, and the pattern of related felony conduct involves the taking of, or results in the loss by another person or entity of, more than one hundred thousand dollars ($100,000), shall be punished . . . by an additional term of imprisonment in the state prison as specified in paragraph (2) or (3). This enhancement shall be known as the aggravated white collar crime enhancement. The aggravated white collar crime enhancement shall only be imposed once in a single criminal proceeding." (§ 186.11, subd. (a)(1).)
The jury found true allegations that defendant committed white collar crimes exceeding the dollar limits in section 186.11, subdivisions (a)(2) [over $500,000] and (a)(3) [more than $100,000 but not more than $500,000]. The trial court imposed five years for the section 186.11, subdivision (a)(2) enhancement and imposed but stayed two years for the section 186.11, subdivision (a)(3) enhancement. Defendant notes that because the total taking amounted to $648,401.37, there is insufficient evidence to support the jury's true finding on the section 186.11, subdivision (a)(3) enhancement.
Here, the total loss was $648,401.37. Nevertheless, the Attorney General argues it was not improper or inconsistent for the trial court to impose and stay a section 186.11, subdivision (a)(3) enhancement on this record, because some of the victims had losses between $100,000 and $500,000. But as the parties both recognize, section 186.11, subdivision (a)(1) directs that the aggravated white collar crime enhancement shall only be imposed once in a single criminal proceeding. Under the circumstances, we will strike the section 186.11, subdivision (a)(3) enhancement.
III
Defendant further claims he is entitled to additional presentence credit. The Attorney General agrees.
The parties agree defendant is entitled to presentence credit pursuant to section 4019, not section 2933.1, and the abstract of judgment should be corrected accordingly.
Effective January 25, 2010, former section 4019 authorized four days of presentence custody credit for every two days in actual custody. (People v. Brown (2012) 54 Cal.4th 314, 318-319.) Then, effective September 28, 2010, the Legislature amended section 4019 again to authorize six days of presentence custody credit for every four days in actual custody. (Former § 4109, subd. (f), as amended by Stats. 2010, ch. 426, § 2.) But that amendment applied to prisoners whose crimes were committed on or after September 28, 2010. (Former § 4019, subd. (g).) Defendant's crimes were committed in 2007 and 2008, and he was first incarcerated in October 2010. He was in custody for 61 days after the January 25, 2010 amendment and 43 days immediately before his 2014 sentencing. The parties agree the controlling version of section 4019 was effective on January 25, 2010, and it authorized four days of custody credit for every two days in actual custody. Based on his 104 days in custody, the presentence custody credit should have been 208 days (104 actual and 104 conduct).
DISPOSITION
The judgment is modified to strike the section 186.11, subdivision (a)(3) enhancement and to award defendant 208 days of presentence custody credit (104 actual days and 104 conduct days) pursuant to section 4019. The judgment is affirmed as modified. The trial court is directed to amend the abstract of judgment to reflect the judgment as modified, and to correct the abstract of judgment to reflect that the presentence credit is awarded pursuant to section 4019 rather than section 2933.1. The trial court shall forward a certified copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
RENNER, J.