Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 3901427-5. Gary D. Hoff, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Zarell Lee Williams appeals from a judgment and sentence for multiple convictions of grand theft, forgery, and fraud involving false instruments or false deeds of trust. He contends, among other things, that there was insufficient evidence to support the jury’s findings on a grand theft count and on certain special allegations relating to the statute of limitations. He also contests his sentencing and certain restitution awards. For the following reasons, we remand for resentencing.
STATEMENT OF THE CASE
On June 7, 2005, an information was filed in Fresno County Superior Court, case No. F03901427-5, charging Williams with 12 specified crimes mainly against Larry Wiggins and Harry Lev. On November 21, 2005, an information was filed in case No. F05905293-7 charging Williams with 11 specified crimes mainly against Daniel Wheatley and Steven Mahlum.
On January 4, 2006, the prosecutor filed a motion to consolidate the informations in these two cases arguing that joinder of similar offenses against a single defendant is authorized by Penal Code section 954. Williams filed an opposition. The superior court heard the arguments and granted the motion, designating case No. F03901427-5 to be the lead case.
All further section citations are to the Penal Code, unless otherwise stated.
On May 4, 2006, a consolidated information was filed charging Williams as follows: count 1, grand theft of personal property (§ 487, subd. (a)); count 2, check forgery (§ 470); count 3, check forgery on or about June 21, 2000; count 4, check forgery on or about July 10, 2000; count 5, check forgery on or about August 5, 2000; count 6, check forgery on or about August 15, 2000; count 7, procuring or attempting to offer a false instrument for filing (§ 115, sub. (a)) on or about April 5, 2000; count 8, forgery (§ 470, subd. (d)) on or about March 29, 2000; count 9, grand theft of personal property belonging to Harry Lev (§§ 484, subd. (a), 487, subd. (a)) on or about April 5, 2000; count 10, false personation (§ 529) of Larry Wiggins on or about March 29, 2000; count 11, fraudulent conveyance (§ 531, subd. (a)) on or about April 5, 2000; count 12, theft from Harry Lev, an elder or dependent adult (§ 368, sub. (d)) on or about April 5, 2000; count 13, grand theft of personal property belonging to Daniel Wheatley on or about September 27, 1999; count 14, procuring or attempting to offer a false instrument for filing on or about October 25, 2002; count 15, grand theft of personal property belonging to Daniel Wheatley on or about March 7, 2001; count 16, procuring or attempting to offer a false instrument for filing on or about March 2, 2001; count 17, procuring or attempting to offer a false instrument for filing on or about March 6, 2001; count 18, knowingly performing a notarial act on a false or forged trust deed (Gov. Code, § 8214.2) on or about March 6, 2001; count 19, forgery on or about March 2, 2001; count 20, grand theft of personal property belonging to Steven Mahlum on or about May 2, 1997; count 21, forgery on or about May 2, 1997; count 22, knowingly performing a notarial act on a false or forged trust deed (Govt. Code, § 8214.2) on or about May 2, 1997; and count 23, procuring or attempting to offer a false instrument for filing on or about June 4, 1998.
Special allegations regarding the statute of limitations (§ 803) were made regarding counts 13 and 14 (first special allegation), 15 through 19 (second special allegation), and 20 through 23 (third special allegation). A fourth special allegation that Williams took, damaged, or destroyed property of a value exceeding $50,000 (§ 12022.6, subd. (a)(1)) was made regarding counts 13 and 15.
The prosecutor moved to dismiss count 11 on August 17, 2006. The superior court granted the motion, and the remaining counts 12 through 23 were subsequently renumbered 11 through 22.
On September 27, 2006, after the conclusion of the evidentiary portion of a jury trial, the court granted the prosecutor’s motion to amend the first special allegation regarding the statute of limitations to apply to count 12 only.
On September 13, 2006, the jury rendered verdicts finding Williams guilty as charged on counts 1-7, 9, 10, 12, 14, 17, and 19-22, and not guilty on counts 11, 13, 15, 16 and 18, and any lesser crimes thereto. The jury found all four of the special allegations to be true. The jury was unable to reach a unanimous verdict on count 8, and the court declared a mistrial as to that count and then granted the prosecutor’s motion to dismiss it.
On March 8, 2007, the prosecutor filed a motion for an order of restitution arguing, among other things, that Williams should be ordered to pay restitution of $64,992.19 to Larry Wiggins, $56,974.91 to Daniel Wheatley, $20,000 to Victor Jimenez, and $26,209.90 to Steven Mahlum.
On April 5, 2007, the court sentenced appellant to state prison for 12 years and four months as follows: the middle term of two years for count 14, eight-month consecutive terms, at one third the middle term, for counts 1 -7, 9, 10, 12, 17, and 19-21, and a one-year enhancement for the fourth special allegation. The court stayed punishment for count 22. The court ordered Williams to pay victim restitution to Larry Wiggins, Daniel Wheatley, Victor Jimenez, and Steven Mahlum.
On April 9, 2007, Williams filed a notice of appeal.
FACTS
It was stipulated that Williams was an active notary public from August 25, 1995 through August 24, 1998 and September 13, 1998 through September 12, 2002. It was also stipulated that Williams had a felony conviction for receiving stolen property and was in custody from May 1, 2001 through February 7, 2002.
A. Counts 19 through 22: Grand Theft from Steven Mahlum, Forgery, and Fraudulent Notarial Act on May 2, 1997; Offering False Instrument on June 4, 1998.
Steven Mahlum first met Williams in July of 1986 when Williams hired him to be a loan officer at Nor-West Financial, where Williams was working at the time. Mahlum worked for Williams for about two years and remained friends with Williams after Mahlum left Nor-West.
Around 1996, Mahlum gave Williams money on at least three occasions, as an “investment,” with Williams as the “middle man,” to make “short term equity” or “second mortgage” loans. The loans were made through a company that Williams owned called Allstar Financial. Mahlum was the “lender” and believed he wrote checks made out to Allstar Financial, and not to the “borrower.” It was agreed that Williams would collect the loan payments, which were supposed to be “lump sum” payments for two short-term loans and “structured payments” for the other loan. However, Mahlum never received any lump sum payments for the short-term loans. Williams did give him “steady payments” for a period of time on the “structured” loan, but the payments stopped, and the loan was never repaid in full. When the structured payments stopped, Mahlum contacted Williams, who told him that the borrower “wasn’t making the payments.” Mahlum was essentially “paid off” on that loan after a “foreclosure sale.”
Regarding the two short-term loans, Mahlum agreed to William’s request that they “consolidate” those loans “into one larger loan.” Williams thus “took over” the two short-term loans and “transferred” another loan equaling about the same amount of money to Mahlum. As proof of this new loan, Mahlum eventually received from Williams a recorded Deed of Trust dated May 2, 1997. Mahlum received payment on the loan, in the form of checks from Allstar Financial, for six to eight months, but the payments then stopped. He contacted Williams and was told that Williams “would try to get the money from the people that took the loans out through” Williams, the Baquirans. Mahlum and his wife continued to contact Williams “to try and get it resolved with” him. Williams continued to tell them “[t]hat he was working on it.” Mahlum discussed with Williams the option of “foreclosing on the Baquiran loan,” but Williams wanted to “continue to try and get” payments from the Baquirans.
Finally, Mahlum started “having doubts” about the Baquiran loan and decided to foreclose on it. He and his wife discussed that decision with Williams, then hired All-Cal Foreclosure Services to handle the foreclosure. Mahlum signed a “request to prepare notice of default” dated February 13, 2003. Williams seemed to think this was a “good idea” and may have provided documents to All-Cal Foreclosure. Between May 2, 1997 and February 13, 2003, Mahlum did not recall having direct contact with the Baquirans about this matter, instead relying on Williams “to do that.” Eventually, he was able to foreclose on the Baquiran property. However, Mahlum then was sued by the Baquirans, who were “saying that they don’t owe” him “the money.” His receipt of the notice of this lawsuit was “the first time” he realized “that there might be a problem with” the loan to them.
Carrie Mahlum, Steven’s wife, testified that she learned in 1997 or 1998 that her husband had made loans through Williams and was receiving monthly payments on the loans. At some point, Carrie learned of a loan through Williams to the Baquirans. She understood that her husband had invested money through Williams and the investments were being “paid off through the assignment of the Baquiran loan.” The May 2, 1997 Deed of Trust documented this transaction. The Mahlums received payments on the Baquiran loan from Williams, but, at some point around 2002, Carrie learned that the payments had stopped. She phoned Williams, who told her that the Baquirans “weren’t paying him” and that he was trying to contact them. After Williams tried for about one year to get the payments to resume, he advised her “to call All-Cal Foreclosure and foreclose” on the Baquirans’ house, and she took his advice.
Victorino Baquiran had never met Williams but had borrowed money through him in the early 1990s. Around 1997, Baquiran and his wife decided to get another loan to consolidate their bills. Using their house as collateral, they borrowed $77,800 from Equi Credit, as shown on the Deed of Trust dated April 19, 1997. They paid off the loan they previously had made through Williams. Around 1998, the Baquirans decided to refinance the loan from Equi Credit and so took out a second loan from Allstar Financial. Around 1999, they took out a third loan from “Beneficial” to refinance the second loan. At some point in time, the Baquirans received a notice of foreclosure on their house. Prior to that time, Victorino had never heard of Steven and Carrie Mahlum. He testified that he never borrowed $26,260.90 from the Mahlums through Williams. After receiving notice of the foreclosure, the Baquirans received a copy of the May 2, 1997 Deed of Trust that appeared to have been signed by them and notarized by Williams, whom they had never met. The document indicated that they had borrowed $29,260.90 from the Mahlums.
James Blanco, a forensic handwriting expert who was hired by an attorney representing the Baquirans to examine the deeds of trust on their property, testified that the Deed of Trust recorded on June 4, 1998 appeared to be the original Deed of Trust, and that this document was changed into the May 2, 1997 Deed of Trust. He determined that the names Allstar Financial and Ronna Williams which had been typed on the Deed of Trust as the trustees had been covered with “White Out” and replaced with the Mahlums.
B. Counts 12, 14, and 17: Grand Theft from Daniel Wheatley on September 27, 1999: Grand Theft from Wheatley on March 7, 2001; and Fraudulent Notarial Act on March 6, 2001.
Daniel Wheatley worked as an insurance agent and first met Williams around September of 1998, when his friend Steven Mahlum brought Williams to his office to discuss “investment opportunities.” In September of 1999, Williams sold Wheatley a mortgage on a house owned by a family named Ramos, who had paid off about half of the mortgage. As Wheatley understood it, Williams had obtained the note on the Ramos house from a person named Harry Lev and then sold the note to Wheatley for $41,974. Williams provided Wheatley with a copy of a Deed of Trust purporting to show that Lev had transferred the Ramos note to Central Valley Lending, which was owned by Williams, and a “loan amortization table” showing the payments Wheatley would receive on the notes and when he would receive them. Williams promised to record the Deed of Trust and provide Wheatley with a copy. Wheatley was to receive payment from Williams, who was to collect payments from the Ramos family. For some time after this transaction, Wheatley received monthly cash payments from Williams “except for two checks, both of which bounced.” Williams also gave a check to Wheatley from a man named Larry Wiggins, whom Wheatley did not know, but the check bounced. Wheatley always had to “initiate contact” with Williams to receive payments and sometimes had to “track” Williams “down.” Finally, around May of 2001, Wheatley could no longer find Williams because, unknown to Wheatley at that time, Williams was in jail on the felony conviction for receiving stolen property. Although Wheatley had kept asking Williams about it, he never received a recorded copy of the Deed of Trust on the Ramos property.
Around August or September of 2001, Wheatley contacted Ramos and learned that Ramos had never heard of him and was still making mortgage payments to Harry Lev. For the first time, Wheatley began to suspect that “this Ramos loan was somehow invalid.” Around September of 2001, Ramos told Wheatley he had paid off Lev; in November of 2001, Ramos began making payments to Wheatley. In April of 2002, Wheatley finally contacted Williams and asked if Williams had given the Ramos family the $40,000 he paid for the note and, if so, why the Ramos family had never heard of him. Williams responded that he had actually used that money to buy two mortgages on houses in Sanger that, “unbeknownst to him, had been foreclosed on and so the money was gone.” Williams promised to pay Wheatley as soon as some other “deals” he had going “matured.”
Wheatley also had made a second, short-term loan through Williams to Victor Jimenez in March of 2001. Williams represented that Jimenez was rebuilding his home “and wanted to get started right away.” Harry Lev had agreed to loan Jimenez $40,000 “in a couple of months,” so Wheatley was to loan Jimenez $15,000 only until the Lev loan went through, at which time Wheatley would be “paid back.” On March 7, 2001, Wheatley wrote out a check to Williams in the amount of $15,000. However, the Deed of Trust and Assignment of Rents from Central Valley Lending to Wheatley and his wife and the other paperwork Wheatley received from Williams indicated that the loan amount was $20,000. Wheatley asked Williams about the other $5,000 and Williams said “the other five was his” and that “[h]e would collect it and distribute it accordingly.” Wheatley never received any payment for this loan, although he expected to be paid off in about two months. In May of 2001, he was unable to contact Williams, so, in May or June of 2001, he contacted Jimenez and asked when Jimenez was going to get his “major funding” from Lev so he could be “paid back.” To his surprise, Jimenez did not know who he was and denied obtaining a loan from him. The Deed of Trust and Assignments of Rent prepared by Central Valley Lending was never recorded because Williams said “it was such a short-term thing” that it “would be ridiculous to record it.” When Wheatley finally contacted Williams in April of 2002 and asked about the Jimenez loan, Williams said that he gave Jimenez the $15,000 he got from Wheatley, that Lev’s loan to Jimenez never went through and that Jimenez “never got the funding,” so there “was no way he could get [Wheatley’s] 15,000 back.”
Victor Jimenez testified that he first met Williams around 1990. Around 1997, Jimenez came into some money and began making loans with Williams as the broker, or “middle man.” He made five or six loans through Williams and received papers from Williams allegedly signed by the borrowers, but he did not understand real estate transactions and relied upon Williams’s expertise. He also relied on Williams to collect the payments on the loan and then pay him. Some payments he received from Williams were by check, with some written on Williams’ account and some written on someone else’s account, and some were in cash. He was still being paid on the loans in 2000. None of these loans were ever paid off. However, Jimenez never foreclosed on them because Williams promised he would “make them good” by “paying” Jimenez “off.”
In 2001, Jimenez borrowed $40,000 from Harry Lev to improve his house using Williams as the “middle man.” Jimenez initially received about $17,000 of this loan from a title or trust company. Williams told him that he would receive the rest of the loan after he “showed improvement of the house.” Jimenez received an additional $20,000 that he assumed was part of this loan some time after Williams got out of prison, from an “Armenian guy” he had previously seen in Williams’ office. While Williams was in prison, Jimenez was contacted by someone, perhaps named Daniel Wheatley, who said Jimenez owed him money. Jimenez had never seen the documents notarized by Williams on March 6, 2001 that purported to show that Jimenez had borrowed $20,000 from Wheatley through Central Valley Lending on March 2, 2001. Jimenez’s typed name on these documents was misspelled as “Jiminez,” and he did not believe that he was the person who signed them. Jimenez also testified that he repaid the $40,000 loan that was made by Harry Lev.
C. Counts 1 through 6, and 10: Grand Theft from Larry Wiggins in 2000; Check Forgery on June 15 and 21, July 10, and August 5 and 15, 2000; False Personation of Wiggins on March 29, 2000.
Larry Wiggins first met Williams around 1990, when Wiggins used Williams as a loan officer to refinance his house and purchase some commercial property. Some years later, Wiggins entered into a second mortgage business with Williams, during which they did 10 to 12 loan transactions, with Williams acting as the middle man. Wiggins received monthly payments from the borrowers through Williams.
On December 13, 1999, Wiggins was arrested and incarcerated in the Fresno County jail for violating his probation. About a month later, when Wiggins realized he was not “going to be getting out quickly,” he arranged for the wife of an acquaintance, Karen Clayton, to take care of his finances. He authorized Clayton to pay his bills by writing checks from his Wells Fargo account. He did not authorize Clayton to write checks from his Dean Witter account because it had no money in it. Wiggins denied asking Williams to take care of his finances or authorizing Williams to write checks on his Wells Fargo or Dean Witter accounts.
While Wiggins was incarcerated, Williams agreed to assist him in getting a $50,000 loan, to be secured by some property that Wiggins owned in Los Angeles County, to make sure Wiggins stayed solvent. In January of 2000, Williams visited Wiggins at the jail, and Wiggins signed the loan documents for this loan. None of the documents were “postdated,” and Wiggins did not sign a “notary journal.”
On July 10, 2000, Wiggins left the jail and entered into a six-month court-ordered Salvation Army rehabilitation program, under which he was allowed no contact with the outside world for 30 days. Beginning around August 9 or 10, 2000, Wiggins was allowed to leave the program for specified periods. He went to an ATM and discovered that his Wells Fargo account was empty. He began examining his bank statements and canceled checks and found that several canceled checks were missing. He requested copies of the canceled checks, none of which appeared to have been written by Clayton.
After graduating from the Salvation Army program, Wiggins received and examined the missing canceled checks from his Wells Fargo account. He was familiar with the handwriting of Williams and of Clayton. He identified several checks that were signed with his name but were not actually signed by him, or by Ms. Clayton with his authorization. Among those checks were several written to Williams, to people who worked for Williams, or to people to whom Williams owed money.
Around September of 2000, Wiggins began examining the statements and checks from his Dean Witter account. The account was not supposed to have any money in it unless and until Wiggins sold stocks that he held with Dean Witter. Wiggins found that “[t]here were several checks for large sums of money that were made out to various people .…” Dean Witter “knew there was no money in the account” and so closed the account, and then sent Wiggins copies of the checks. None of those checks appeared to have been signed with Wiggins’s name by Clayton.
Around April of 2001, Wiggins was contacted by Harry Lev, who he knew as a person who did business with Williams. Lev showed Wiggins a Deed of Trust purporting to show that Lev had loaned Wiggins $40,000 and that the loan was secured by some real property Wiggins owned. The document appeared to have been signed by Wiggins and notarized by Williams on March 29, 2000, and was recorded on April 5, 2000. However, Wiggins had not signed the document; he was in jail on the date the document was signed and received no visitors on that date. According to Wiggins, he had never borrowed money from Lev.
Wiggins went to the title insurance company that was named on the Deed of Trust and was shown a canceled check to him for $35,000 with what appeared to be his endorsing signature on the back; however, he had not signed the check nor authorized anyone to sign it for him. A stamp on the back of the check showed that it was deposited into the bank account of Williams’s company, Central Valley Lending. The title company eventually conducted an investigation into this transaction and determined, based primarily on Wiggins’s custodial status and lack of visitors during the relevant time period, that Williams’s signatures on the Deed of Trust and the $35,000 check were forged. Wiggins eventually determined that numerous other checks belonging to him, from both his Wells Fargo and Dean Witter accounts, had been forged with his signature.
D. Counts 7 and 9: Offering False Instrument and Grand Theft from Harry Lev on April 5, 2000.
Harry Lev testified that the forged Deed of Trust on Wiggins’s property showed his $40,000 loan to Wiggins with Williams as the intermediary. He may have received some payment on the loan.
DISCUSSION
I.
Sufficiency of Evidence on Count 19
On appeal, Williams contends that there was insufficient evidence to convict him of grand theft of Steven Mahlum by false pretenses (count 19) because Mahlum’s relinquishment of a right to repayment on possibly illegitimate loans does not satisfy a requirement for a finding of grand theft by false pretenses – that the victim part with property in excess of $400.
The test to determine a claim of insufficient evidence is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) In making this determination, the appellate court must review the evidence in a light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence. The task of the court on appeal is twofold. First, the court must resolve the issue in light of the whole record. Second, the court must judge whether the evidence of each of the elements of the offense is substantial. (Id. at pp. 576-577.) “Substantial evidence” is evidence that is credible and of solid value, from which a rational trier of fact could have found in favor of the prosecution beyond a reasonable doubt. (Id. at p. 578.)
The elements of grand theft by means of false pretenses are: (1) the defendant made a false pretense or representation, (2) the representation was made with intent to defraud the owner of the property, and (3) the owner in fact parted with his property valued in excess of $400 in reliance on the representation. (People v. Britz (1971) 17 Cal.App.3d 743, 751.)
According to Williams, there was insufficient evidence to support the third element. Here, the count on grand theft by false pretenses was based upon Williams’s representation to Mahlum that “the principal on the 1996 short-term loans was not repaid by the borrowers as scheduled, and that Mr. Mahlum was receiving a secured interest in the borrower’s property which induced Mr. Mahlum to accept the note in lieu of repayment he believed to be due on what he believed were previous loans.” However, according to Williams, “[t]he evidence did not ever establish that these first two loans were legitimate or illegitimate, repaid or not[.]” (Ibid.) Thus, Williams contends that there is insufficient evidence that Mahlum parted with any property or money because there is not substantial evidence that Steven Mahlum had a right to any money or property. We disagree.
The relinquishment of a contractual right to repayment on two short-term loans totaling $26,260.90 satisfies the third element of grand theft by false pretenses – that the crime victim “in fact parted with his property valued in excess of $400.” Here, Steven Mahlum had a contractual right to payment on the $26,260.90 that he loaned. A contractual right to repayment on a loan is a property right. (See, e.g., People v. Parker (1967) 255 Cal.App.2d 664, 672 [contractual promise to pay is property within the meaning of section 487].) Mahlum was receiving some payments on that loaned amount until he agreed to exchange his right for repayment on the two short-term loans to his right of repayment on the Baquiran loan. Thus, by agreeing to give up the repayment on the two short-term loans in exchange for the Deed of Trust on the Bacquiran property, Mahlum parted with his property. Also, there is sufficient evidence that the relinquishment of the right to repayment on the loans is worth in excess of $400. Mahlum was willing to loan $26,260.90 in order to receive this stream of loan payments. Thus, to Mahlum, the right to the stream of payments was worth that amount. Even if Mahlum miscalculated the value of his right to a stream of payments by a factor of 10, the value of that right of payment would still be in excess of $2,600, which would still meet the requirement for grand theft by false pretenses.
Moreover, even if the short-term loans to the borrowers were illegitimate, Mahlum was still receiving payments on the $26,260.90 that he had loaned through Allstar Financial. The fact that Mahlum was receiving payments is sufficient evidence to indicate that Allstar Financial conceded that it had a contractual obligation to pay Mahlum on his two short-term loans totaling $26,260.90. As discussed earlier, the right to those payments was worth at least $400.
Thus, we conclude that there was sufficient evidence to support Mahlum’s conviction for grand theft by false pretenses (count 19).
II.
Consolidation of Informations
Williams also contends that the trial court abused its discretion in granting the prosecutor’s motion to consolidate the two separate informations into one jury trial. He concedes that “the theft, forgery and fraud offenses charged in the two cases which were consolidated are of the same class and thus might be properly joined by the prosecutor.” However, he contends that, in this case, the trial court abused its discretion because it applied the wrong standard for overruling his objection to the consolidation.
The trial court had concluded that Williams would not suffer from “undue prejudice” because some evidence on charges in the second information would be cross-admissible to prove charges in the first admission. Williams contends that he needs only show prejudice, as opposed to undue prejudice, and that he has shown prejudice because “the jury will aggregate the evidence it sees and hears.” He also argues that the evidence that was deemed cross-admissible by the prosecutor was merely character evidence and not necessary to “establish guilt on any of the charged forgery offenses or any other charges.” Williams concedes that character evidence is admissible for the limited purpose of proving intent, but argues that the cross-admissible evidence in this case was not “necessary to prove appellant had the requisite intent to defraud when he committed the charged forgery offenses” because the prosecutor could have used other evidence to establish this fact.
Section 954 permits related offenses to be charged in a single accusatory pleading if they are offenses of the same class of crime. (People v. Ramirez (2006) 39 Cal.4th 398, 439.) A party seeking severance has the burden to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (Ibid.) Refusal to grant a severance motion may “‘“be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; and (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.] (Ibid.)”’ [Citation.]”
Here, the last three factors were not inapplicable or do not show an abuse of discretion. Williams contends that the first factor, cross-admissibility of evidence, supports severance, but his argument is not persuasive. Williams concedes that the evidence on the charges in one information is cross-admissible under Evidence Code section 1101, subdivision (b), to prove charges in the other information. The fact that such evidence is not necessary to the prosecutor’s case does not result in a different conclusion on the issue of cross-admissibility. Because the evidence of the crimes to be jointly tried would be cross-admissible in separate trials, Williams cannot show that the trial court abused its discretion in denying the severance motion.
III.
Special Allegations on Statute of Limitations
Williams further contends that there was insufficient evidence to support the jury’s findings on the special allegations that the prosecutor filed seven of the counts (counts 12, 14, 17, 19-22) within the applicable statute of limitations period. We agree with Williams on counts 14 and 17, but reject his argument with respect to the remaining counts.
In California, the statute of limitations is a jurisdictional defense, and a conviction for an offense barred by the statute of limitations is invalid whether or not the delay in prosecution has resulted in prejudice. Even a conviction based on a guilty plea will be set aside, and habeas corpus is available. (People v. Zamora (1976) 18 Cal.3d 538, 546-547 (Zamora); People v. Williams (1999) 21 Cal.4th 335, 340-341.) Under sections 801.5 and 803, subdivision (c)(1), in order for the jury to find true the special allegations, the jury must find that the prosecution has proven by a preponderance of the evidence that the prosecution of the contested counts was commenced within four years of the date that 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. (See Zamora, supra, 18 Cal.3d at pp. 562, 571-572.)
Here, the prosecution of Williams for his crimes against Steven Mahlum and Daniel Wheatley was commenced on July 15, 2005. Thus, the prosecution must show by a preponderance of the evidence that the victim did not and could not, even through the exercise of reasonable diligence, know that a crime had been committed until July 16, 2001 or a later date.
Williams contends that, on counts 19 through 22, “[t]he facts known to the alleged victim [Steven Mahlum] no later than 1999, were sufficient to raise the suspicions of a reasonable person that fraud had possibly been committed, and a reasonable person would have been diligent in making inquiries which might reveal fraud.” According to Williams, Mahlum should have become suspicious that a crime occurred when Williams stopped payments on the Baquiran loan. However, the record shows that Mahlum was suspicious but that Williams allayed his suspicions until February of 2003, when Mahlum decided to foreclose on the loan. As stated in the special allegation, Williams “always had an excuse” for why the payments to Mahlum were not forthcoming and, when Mahlum initially considered foreclosure, Williams intervened to tell him that Williams “would try to get the money from the people that took the loans out through” Williams. Williams continued to tell Mahlum that he would try to get payments until Mahlum decided to foreclose on the loan. In light of Mahlum’s extensive prior dealings with Williams during which Mahlum was paid on his loans, we cannot say that, as a matter of law, it would have been unreasonable for Mahlum to believe Williams’s assertions that payments on the loan were forthcoming and that Mahlum did not discover that Williams had committed crime until he received notice that there was a problem with the Baquiran loan after the foreclosure proceedings.
Williams also contends that, on counts 12, 14, and 17, “[t]he facts known to the alleged victim [Daniel Wheatley] no later than May, 2001, were sufficient to raise the suspicions of a reasonable person that fraud had possibly been committed, and a reasonable person would have been diligent in making inquiries which might reveal the fraud.” Williams is contending that, on count 12, Wheatley should have become suspicious that a crime occurred shortly after September 27, 1999, when Williams failed to give him a recorded copy of the Deed of Trust showing his loan to the Ramos family instead of giving a “ridiculous excuse” for not recording the document. Williams suggests that Wheatley also should have become suspicious by the facts that he did not receive payments from Williams on a particular day of the month, as provided for in the payment schedule, but was paid only after instigating contact with Williams, and was sometimes paid in cash. Regarding counts 14 and 17, Williams suggests that Wheatley should have become suspicious when Williams failed to record the Deed of Trust showing his loan to Jimenez in March of 2001.
However, similar to Mahlum, Wheatley relied on Williams’s assurances, consistent with Williams’s admitted business practice, that Williams would collect the loan payments and give them to Wheatley. The record does not show that Wheatley was knowledgeable about secured transactions involving real estate, including the rationale for recording deeds of trusts. Furthermore, the record shows that Wheatley was receiving monthly cash payments from Williams on the Ramos loan until around May of 2001, when he could no longer find Williams because Williams was in jail. Wheatley did not become suspicious about the Ramos loan until September of 2001 when he contacted Ramos. However, in November of 2001, Ramos began making payments directly to Wheatley. It is reasonable to conclude that these payments allayed Wheatley’s suspicions about the legitimacy of the Ramos loan. It was not until April of 2002, when Wheatley was finally able to contact Williams after Williams had gotten out of prison, that Wheatley finally learned that his money was gone. On this record, we cannot say that a reasonable person would have become suspicious about the Ramos loan prior to April of 2002.
We reach a different conclusion with respect to the special allegation regarding counts 14 and 17, which involved the Jimenez loan that occurred in March of 2001. Wheatley testified that he believed that the loan would be repaid within two months. When he did not receive payments, he tried to contact Williams, but Williams was unavailable because Williams was in jail. Wheatley then contacted Jimenez in May or June of 2001. During this conversation, Jimenez denied owing Wheatley any money and Wheatley then “knew that there was [sic] problems.” Thus, Wheatley was on notice as of June 2001 that a crime may have been committed. Moreover, there is no evidence that Wheatley subsequently engaged in a diligent investigation. For example, Wheatley could have faxed a copy of the loan documents to Jimenez who then likely would have told Wheatley that the signature on the document was forged because it misspelled his name as “Jiminez” and it was not his signature. At that point, Wheatley would be on notice that a crime had been committed by Williams. Finally, Jimenez did not make any payments to Wheatley that might have allayed Wheatley’s suspicions.
Thus, we conclude that there was not substantial evidence to support the jury’s findings that the prosecution of counts 14 and 17 was commenced within the applicable statute of limitations period; the convictions on those counts must be vacated. However, there was substantial evidence to support the special allegations on the remaining counts.
IV.
Stay of Punishment Under Section 654
Williams next contends that the trial court erred in not staying punishments on certain counts pursuant to section 654. Specifically, Williams contends that counts 2-7, 10, 17, 20 and 21 were committed during an indivisible course of conduct with crimes for which he was punished.
Section 654 provides in relevant part that: “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 provision.” (§ 654(a).) Section 654 “is not applicable where the defendant has entertained multiple criminal objectives which were independent of and not incidental to each other, even though the violations were parts of an otherwise indivisible course of conduct.” (People v. Gangemi (1993) 13 Cal.App.4th 1790, 1799 (Gangemi).) Moreover, “[u]nder section 654, ‘a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]’ [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.]” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
Because we have vacated the conviction on count 17, we turn to the arguments on the remaining counts. We review the trial court’s determination that the sentences on the remaining counts should not be stayed under the substantial evidence test. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)
Williams contends that his punishment for count 1, the grand theft of Larry Wiggins in the year 2000, precluded his punishment for counts 2 through 6, forging five specified checks from Wiggins’s bank accounts during that same year. We disagree because we conclude that the objective of accomplishing grand theft of money from Larry Wiggins in the particular circumstances here is too broad to invoke section 654, especially when the appellant committed different acts at different times. (See People v. Neder (1971) 16 Cal.App.3d 846, 853-854 (Neder).) In Neder, the court held that section 654 did not bar conviction and punishment for three counts of forgery based upon three separate incidents even though the offenses were arguably incidental “to the fundamental objective of taking goods from Sears by use of the credit card and by forging the sales slips” because “this objective is too broad to tie the separate acts into one transaction.” (Id. at pp. 853-854.) According to the court, “each forgery was certainly not a means for the accomplishment of any of the others. Nor was it a means to the immediate end of any of the others. Each act of forgery was committed for the taking of certain goods, separate from and unrelated to the goods taken by the other forgeries.” (Id. at p. 854.)
Here, the record does not show that each forgery was a means for the accomplishment of any of the other forgeries. For example, Williams did not forge identification papers to support the authorization of a forged check. Moreover, some of the forgeries were drawn upon the Wells Fargo account (counts 2 through 4) and other forgeries were drawn from the Dean Witter account (counts 5 and 6). Thus, the forgeries were committed for the takings of separate goods. Moreover, each forgery was committed at separate times, with at least six days between each check. The temporal separation between each act of forgery supports a finding that Williams had a separate intent each time he wrote the check, even if it was part of an indivisible plan. Moreover, although the prosecutor argued that the grand theft of money from Larry Wiggins was a continuing offense in count 1, that did not necessarily preclude the separate counts which were all for forged checks written to Williams. The prosecution also introduced evidence of other checks forged by Williams during that same period. These checks were written to people who worked for Williams or to people to whom Williams owed money. Therefore, we conclude that substantial evidence supports the trial court’s decision to not stay the punishments for counts 2 through 6.
Williams also contends that his punishment for count 9 (grand theft from Harry Lev on or about April 5, 2000) precluded his punishment for counts 7 (procuring or attempting to offer a false instrument for filing on or about April 5, 2000) and 10 (false personation of Larry Wiggins on or about March 29, 2000). However, the Penal Code section charged in count 7 (§ 115, sub. (a)) has been held to be an exception to the “penalty limitations of section 654.” (Gangemi, supra, 13 Cal.App.4th at p. 1800.) Section 115, subdivision (d), provides: “For purposes of prosecution under this section, each act of procurement or of offering a false or forged instrument to be filed, registered, or recorded shall be considered a separately punishable offense.” The court concluded that: “[T]he Legislature has unmistakably authorized the imposition of separate penalties for each prohibited act [punishable under section 115] even though they may be part of a continuous course of conduct and have the same objective.” (Gangemi, supra, 13 Cal.App.4th at p. 1800.) We conclude that the holding in Gangemi is applicable to this case because the language of section 115, subdivision (d), is broad enough to encompass cases where an offense punishable under section 115, subdivision (a), is a means of accomplishing grand theft of money.
As to count 10, Williams is correct that, where the offenses arising out of the same transaction are not crimes of violence but involve crimes against property interests of several persons, the California Supreme Court has recognized that only a single punishment is permissible. (People v. Bauer (1969) 1 Cal.3d 368, 378.) Here, Harry Lev testified that he loaned the money only when he saw the falsified deed of trust. Thus, the false personation was used to accomplish the grand theft of money from Harry Lev for that loan amount. Williams could be convicted only for the false personation or for the grand theft, not for both. Our conclusion on count 10 is different from our conclusions on counts 2 through 6 because, here, there was only one act of false personation that achieved the goal of getting Harry Lev to make one loan allegedly to Wiggins, whereas in counts 2 through 6, there were multiple instances separated over two months where Williams forged checks drawn upon different accounts to himself for different amounts of money. Thus, we conclude that the trial court erred in not staying punishment for count 10.
Finally, Williams argues that his punishment for count 19 (grand theft from Steven Mahlum on or about May 2, 19997), precluded his punishment for counts 20 and 21 (forgery and performing a notarial act on a false deed on or about that same date). Williams alleges that counts 20 and 21 were merely incidental to, and a means of accomplishing, count 19. Although the trial prosecutor apparently conceded that the trial court erred in not staying two counts, there was no prejudice because the trial court erred in staying count 22, which also charged that Williams violated section 115, a section that has been held to be an exception to the penalty limitation of section 654. (See Gangemi, supra, 13 Cal.App.4th at p. 1800.)
Since we are vacating the convictions for counts 14 and 17, upon remand, the trial court should stay any punishment for count 10 in light of the punishment for count 9 during resentencing.
IV.
Restitution Awards
Williams contends that the trial court’s order that he pay $20,000 in restitution to Victor Jimenez was not authorized and must be stricken. He also asserts the order that he pay $64,992.19 to Larry Wiggins was excessive and must be reduced. The People concede that the award to Wiggins may be excessive and argue that the case should be remanded to redetermine the restitution due Wiggins.
Because we have concluded that counts 14 and 17 should be vacated, no award to Jimenez is justified. It is also possible that the restitution award to Wheatley should be reduced. Moreover, the People have conceded that the restitution award to Wiggins is excessive. In light of the reversal of convictions and the People’s concession, upon remand, the trial court should recalculate the restitution awards.
DISPOSITION
The convictions on counts 14 and 17, together with the sentences imposed thereon, are vacated. The convictions on the remaining counts are affirmed. The case is remanded for resentencing in light of this opinion.
WE CONCUR: Cornell, J., Hill, J.