Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Matthew Mulford and Collette Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on June 28, 2018 be modified as follows:
1. On page 10, the text of existing footnote 8 is deleted.
2. On page 17, following the last paragraph of section II.A.4, add the following paragraph and related footnote:
Because we reject the premise of appellant's argument that the trial court could not identify which of the charged felonies involved a pattern of related felony conduct, we also reject her alternative appellate argument the trial court, for that reason, should have dismissed the aggravated white collar crime enhancement in the interests of justice under section 1385. We are not persuaded by Moore's argument that the trial court committed reversible error
because it did not believe it had discretion to reconsider sentencing under section 186.11. Although we agree the law of the case did not apply and the trial court had the discretion to consider a dismissal motion under section 1385, the record shows the trial court explicitly stated that even if it were to accept Moore's argument concerning its authority to relitigate the applicability of the white collar crime enhancement that it would not do so because "the facts support it." The record clearly shows that the trial court would have imposed the same sentence enhancement if it were to have considered Moore's arguments. Therefore, error, if any, is harmless.
At oral argument, the People conceded People v. Avignone (2017) 16 Cal.App.5th 1233, 1243, which held that certain provisions of the Realignment Act eliminated the trial court's authority under section 1385 to strike the white collar crime enhancement, does not generally prohibit the trial court from considering a motion to dismiss a white collar crime enhancement under section 1385. We agree the facts of this case differ from those in Avignone and accept the People's concession that Avignone does not apply here.
The petition for rehearing is denied.
There is no change in the judgment.
BENKE, Acting P. J.
Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. (Super. Ct. No. SCD236506) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed in part; reversed in part, with instructions. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Matthew Mulford and Collette Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
Tara Virginia Moore appeals from her resentencing on two counts of embezzlement, one count of grand theft, and one count of financial elder abuse. (See People v. Moore (June 30, 2016, D066952) [nonpub. opn.]; Moore I.) Moore contends the trial court erred in: (1) imposing the aggravated white collar crime enhancement under Penal Code section 186.11; (2) failing to stay or strike two of the three sentence enhancements under section 12022.6; and (3) relying upon what it viewed as her lack of remorse and breach of trust as aggravating factors in imposing upper terms on the principal count and the aggravated white collar crime enhancement. Moore also argues the court security fee (§ 1465.8) and the criminal conviction assessment (Gov. Code, § 70373) should be imposed only on the convictions that were upheld by this court in Moore I. In supplemental briefing, Moore contends the section 12022.6 enhancement penalty may not be imposed because the statute was repealed by operation of law during the pendency of this appeal.
Appellant's request for judicial notice of the nonpublished opinion in Moore I is denied as unnecessary. On our own motion, we take judicial notice of the appellate record in Moore I.
Further unspecified statutory references are to the Penal Code.
Unless otherwise indicated, statutory references to section 12022.6 are to former section 12022.6 (Stats. 2007, ch. 420, § 1, p. 3675), repealed by operation of law on January 1, 2018.
Shortly before oral argument, at Moore's request, we granted leave to the parties to file simultaneous letter briefs on the applicability of the repeal of section 12022.6, effective January 1, 2018, to Moore's judgment and sentence.
The People contend Moore's arguments concerning the validity of her sentence enhancements under sections 186.11 and 12022.6 are barred by the scope of the remittitur and the law of the case. They assert the trial court properly exercised its discretion at resentencing and Moore has forfeited her right to challenge the discretionary sentencing issues and the imposition of fines and fees by failing to object to the court's rulings.
We agree with Moore that the court security fees and criminal conviction assessments cannot be imposed on the convictions that were reversed in her first appeal. Otherwise, we find no error and affirm.
As relevant to this appeal, we set forth an abridged version of the Factual and Procedural Background discussed in Moore I.
In an amended information, the People alleged Moore was guilty of grand theft and embezzlement of more than $3 million from her employers, William Berkley and Richard Anderson; grand theft of $65,000 of military survivor benefits; grand theft and financial elder abuse, in the amount of $1.837 million, from her then mother-in-law, Dr. Dragica Markovich (Markovich); and two counts of forgery. The People also alleged Moore engaged in a pattern of fraud and embezzlement involving two or more related felonies involving the taking of, or resulting in the loss by another person of, more than $500,000 (§ 186.11, subd. (a)(2)), and that each felony count was subject to an aggregate takings enhancement (§ 12022.6).
A jury found Moore guilty of grand theft and embezzlement from Berkley and Anderson, grand theft of military survivor benefits, financial elder abuse of and grand theft from Markovich, and one count of forgery, all felonies. (§§ 487, subd. (a), 508, 368, subd. (d), 470, subd. (d).) The jury returned true findings on the aggregate takings enhancements relating to Anderson, the military survivor benefits, and Markovich, and sustained the aggravated white collar crime enhancement.
The jury was unable to reach a verdict on whether Berkley's aggregate losses exceeded $1.3 million.
At the November 7, 2014 sentencing hearing, the trial court received a letter from Markovich. Markovich said she had loved and trusted Moore, who betrayed her. Markovich had worked hard to be able to take care of herself and her medical needs, and leave her children a legacy. Moore deprived Markovich of $2.339 million. Moore's actions denied Markovich financial security, leaving her unable to take care of her needs. Her son subsidized her income every month. Her daughter became her caregiver, in addition to having a full-time job. Markovich said the overwhelming stress from losing her retirement savings resulted in major health complications. Markovich wrote to Moore, "You were the recipient of our greatest generosity, kindness and love and affection. You had a chance to be part of a decent and caring family. Your reaction to this privilege was lying, cheating, deceiving, manipulating and stealing."
Berkley said Moore destroyed his dreams and fortunes. In July 2009 he lost nearly everything: his real estate holdings, his restaurant, his life's financial accomplishments, his family's security, and his reputation and self-esteem. He was in despair. Berkley said if it had not been for Moore, his restaurant would still be thriving and 120 people would have their jobs. Moore deceived Anderson, Markovich, Bobby Markovich (Moore's ex-husband), the United States Navy, CPAs, attorneys, the banks, and himself. Berkley said he unknowingly paid for five of Moore's six weddings, including $250,000 she stole from him to pay for her sixth wedding a few months before he had to close his restaurant. Berkley could not afford to pay for his own daughter's wedding. Berkley said Moore had no remorse, no shame, no guilt, and did not apologize. She caused a great deal of pain to a great many people.
Anderson's daughter appeared on his behalf and read his statement. Anderson was physically pained when he realized Moore had deceived him. He had hired her and had entrusted his respectable business to her. Moore was embraced as a family member in his home for more than 20 years, and he had acted as a father figure and a mentor to her. Moore was nothing but a thief and a compulsive liar who betrayed their friendship and destroyed their trust. She did not show one ounce of remorse for the wreck she left behind. Anderson asked the court to impose the maximum sentence on Moore in view of the significant financial damage and indescribable emotional harm she had imposed on the injured parties.
The trial court sentenced Moore to the maximum prison term of 15 years eight months, ordered Moore to pay restitution, and imposed various fines and fees, including a $40 court security assessment on each conviction for a total of $320 (§ 1465.8), and a $30 criminal conviction assessment on each conviction for a total of $240 (Gov. Code, § 70373).
On appeal, for reasons that are fully explained in Moore I, this court reversed the grand theft convictions (Berkley, Anderson, and Markovich) and the forgery conviction, and remanded the matter to the trial court for resentencing.
At the December 16, 2016 resentencing hearing, the court first heard the parties' arguments about the imposition of the aggravated white collar crime enhancement and the aggregate takings enhancement. Defense counsel (Counsel) argued the jury was required to determine which counts were "related" for purposes of the aggravated white collar crime enhancement. He asserted the jury could have returned a true finding on the aggravated white collar crime enhancement based on the two felony convictions for each victim. In view of the reversal of the grand theft convictions, Counsel asserted the basis of the jury's "related felonies" finding was speculative and therefore insufficient to sustain a sentence enhancement under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Ring v. Arizona (2002) 536 U.S. 584. Counsel also argued the aggregate takings enhancement should be calculated at one-third the middle term instead of the full term.
Moore waived her presence at the resentencing hearing.
The prosecutor argued the sentence enhancements were affirmed on appeal and Moore's arguments, which should have been raised in her first appeal but were not, had been forfeited.
In ruling on the parties' arguments, the court stated the defense had forfeited any relitigation of the white collar crime enhancement or the aggregate takings enhancement. The court stated that even if the matter had not been forfeited, there was no legal basis to limit the aggregate takings enhancement to one-third of the middle term because it was a separate enhancement. The court said the aggravated white collar crime enhancement was fully supported by the evidence.
The court then received statements concerning mitigating and aggravating factors to be applied at resentencing. The prosecutor submitted the statements the victims had made at the previous sentencing hearing for the trial court's consideration. The court heard from Moore's 11-year-old daughter and Moore's former husband, Dr. David Fox.
Moore's daughter told the court she and her younger sister needed their mother and described how difficult the last few years without her had been for them. Fox said Moore had been the primary parent to their children while he was deployed. Because of his absences, the children had a primary bond with their mother and he could not replace that bond. He asked the court to release Moore on probation.
The court asked Fox whether Moore had ever expressed any remorse for what she did. Fox said, "Not to me, your Honor."
The court asked Counsel whether Moore had made any statements expressing remorse for her conduct. Counsel said they did not have anything on the record to present to the court.
After considering the victims' impact statements, the statements made on Moore's behalf, and the parties' arguments, the court noted the evidence of Moore's guilt was overwhelming. The court remembered much of what the victims had said at the initial sentencing hearing. Berkley watched his entire business collapse. He could not afford to pay for his daughter's wedding. Markovich lost her retirement savings. Moore's actions had devastated her victims.
The court said it did not see any change in circumstances that would justify a reduced sentence. The children's grief was heartbreaking but Moore was no different from others who had committed crimes without thinking about the effect on their families. Moore ran a very sophisticated, ongoing operation involving two sophisticated victims and one unsophisticated victim. They were vulnerable because they trusted her and she took advantage of their trust. The court found that the only mitigating factor was Moore's lack of criminal history, and incorporated the findings it had made at the previous sentencing hearing.
With respect to the count of financial elder abuse, the court found that Moore had violated the trust of a vulnerable victim and imposed the upper term of four years, with a consecutive three-year term on the aggregate loss enhancement (§ 12022.6, subd. (a)(3)) and a consecutive five-year term on the aggravated white collar criminal enhancement (§ 186.11), for a total principal term of 12 years. The court then sentenced Moore to a total of three years on the subordinate counts, to run consecutively, as follows:
Embezzlement (Berkley), eight months;
Embezzlement (Anderson), eight months plus eight months for aggregate loss;
Grand theft (military survivor benefits), eight months plus four months on the aggregate loss enhancement.
Moore was sentenced to a total of 15 years in prison. The court ordered all restitution amounts, and all fines and fees, set at the last hearing to remain in effect.
The Aggravated White Collar Crime Enhancement
1. Relevant Legal Principles
Section 186.11 states: "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, upon conviction of two or more felonies in a single criminal proceeding, in addition and consecutive to the punishment prescribed for the felony offenses of which he or she has been convicted, by an additional term of imprisonment in the state prison . . . ." (§ 186.11, subd. (a)(1).)
A "pattern of related felony conduct" is defined as "engaging in at least two felonies that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics, and that are not isolated events." (§ 186.11, subd. (a)(1).) "Two or more related felonies" means "felonies committed against two or more separate victims, or against the same victim on two or more separate occasions." (Ibid.)
2. The Parties' Arguments
Moore argues the trial court erred when it imposed a five-year consecutive sentence for the aggravated white collar crime enhancement. (§ 186.11, subd. (a)(2).) She contends the jury was not asked to specify which of the charged felonies involved a "pattern of related felony conduct" as required by section 186.11, subdivision (a)(1). Moore asserts that after this court reversed four of the counts, the trial court could not determine whether the jury's true finding on the white collar crime enhancement was based on the remaining counts or on the dismissed counts, and thus, the court erred as a matter of law in imposing the enhancement term. Alternatively, Moore contends the trial court should have exercised its discretion under section 1385 to strike the aggravated white collar crime enhancement in the furtherance of justice.
In her briefing, Moore acknowledged that this court in People v. Avignone (2017) 16 Cal.App.5th 1233, 1243, held that a trial court lacks authority to strike an aggravated white collar crime enhancement under sections 186.11 and 1170, subdivisions (f) and (h)(3), and asked us to revisit this holding. The record shows that Moore did not ask the trial court to strike the white collar crime enhancement pursuant to section 1385. At oral argument, in view of the doctrine of forfeiture and the law of the case, Moore withdrew this argument.
The People contend the trial court had no discretion to consider the validity, sufficiency, or legality of white collar crime enhancement because this court affirmed the enhancements in Moore I and the law of the case applies.
3. The Law of the Case Does Not Apply
"[T]he law-of-the case-doctrine 'prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances.' " (People v. Boyer (2006) 38 Cal.4th 412, 441.) We are not persuaded by the People's argument that this issue is governed by this court's decision in Moore I.
In that appeal, this court rejected Moore's argument that she did not engage in a pattern of related felony conduct because the funds from each victim were obtained by different methods of commission and were not interrelated. This court determined the record showed that all of the victims were deceived by a pattern of fraudulent activity and that Moore used some of the funds obtained from each victim to cover up her thefts from the other individuals. Thus, Moore's pattern of theft was interrelated, and the thefts did not occur as isolated events. (Moore I, § G.)
Here, in contrast, Moore's claim concerns whether the jury made the constitutionally required factual determination to impose an increase in punishment in view of this court's reversal of four of her convictions. (See Apprendi, supra, 530 U.S. at p. 490 [other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt].) Moore contends neither the pleading of the aggravated white collar crime enhancement nor the jury instructions allowed the trial court to determine on resentencing whether the jury's true finding on the aggravated white collar crime enhancement was based on counts that were reversed by this court in Moore I or on the remaining counts. She points out this issue did not arise until this court reversed the duplicative counts for each victim on appeal.
As we indicated, we are not persuaded by the People's argument the law of the case governs the outcome of the resentencing. Upon resentencing, the trial court is entitled to consider the entire sentencing scheme and is not limited to merely striking the illegal portions of the sentence. The trial court may reconsider all sentencing choices. (People v. Hill (1986) 185 Cal.App.3d 831, 834; People v. Burbine (2003) 106 Cal.App.4th 1250, 1258.) "This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." (Hill, at p. 834.) Therefore, the law of the case doctrine did not limit the trial court's discretion on resentencing and does not control the outcome of this appeal. 4. The Aggravated White Collar Crime Enhancement Cannot Be Imposed Absent Factual Findings by the Trier of Fact
"The aggravated white collar crime enhancement has an unambiguous pleading and proof requirement." (People v. Nilsson (2015) 242 Cal.App.4th 1, 15 (Nilsson).) Section 186.11, subdivision (b)(1) states: "The additional prison term and penalties provided for in [section 186.11,] subdivisions (a), (c), and (d) shall not be imposed unless the facts set forth in [section 186.11,] subdivision (a) are charged in the accusatory pleading and admitted or found to be true by the trier of fact."
In March 2014, the People filed an amended information against Moore charging her with five counts of grand theft, two counts of fraudulent appropriation by an employee (embezzlement), one count of theft from an elder, and two counts of forgery. The information further stated: "ALLEGATIONS AS TO ALL COUNTS: [¶] AGGRAVATED WHITE COLLAR CRIME ENHANCEMENT: And it is further alleged that said defendant, TARA VIRGINIA MOORE, committed two or more related felonies, a material element of which is fraud and embezzlement, which involved a pattern of related felony conduct which involved the taking of more than five hundred thousand dollars ($500,000), within the meaning of PENAL CODE SECTION 186.11(a)(2)." Thus, the pleading alleged all of the counts were related felonies for purposes of the aggravated white collar crime enhancement.
The trial court instructed the jury:
"If you find the defendant guilty of all or some of the crimes charged, you must then decide whether the People have proved the additional allegation that the defendant engaged in a pattern of related felony conduct that involved the taking of, or resulted in the loss by another person or entity of, more than $500,000 . . . .
"To prove this allegation, the People must prove that:
"1. The defendant committed two or more related felonies, specifically Grand Theft, Theft from an Elder Adult or Forgery;
"2. Fraud or embezzlement was a material element of at least two related felonies committed by the defendant;
"3. The related felonies involved a pattern of related felony conduct;
"4. The pattern of related felony conduct involved the taking of or resulted in the loss by another person or entity of more than $500,000 . . . .
"A pattern of related felony conduct means engaging in at least two felonies that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics, and that are not isolated events.
"Related felonies are felonies committed against two or more separate victims, or against the same victim on two or more separate occasions.
"Fraud is a material element of Grand Theft, Theft from an Elder Adult and Forgery[.]
"Embezzlement is a material element of Grand Theft and Theft from an Elder Adult.
"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.
"You will include a special finding on the question of whether this allegation is true or untrue in your verdict, using a form that will be supplied for that purpose."
The jury was also instructed on the theories of grand theft by larceny, grand theft by embezzlement, and grand theft by false pretense.
During closing argument, the prosecutor told the jury the aggravated white collar crime enhancement was "basically . . . a pattern a of criminal fraudulent activity. . . . if you [find] the defendant guilty as charged or guilty of multiple offenses, then your determinations under this allegation are already going to be done for you because they all involve[d] the element of [fraud or embezzlement]. This will be a pro forma or administrative duty on your part to read through and fill out, based upon your convictions on the other charges and counts."
The defense did not object and did not refer to the aggravated white collar crime enhancement during closing argument.
The jury returned a special finding on the aggravated white collar crime enhancement. The verdict form states: "We, the jury in the entitled above cause, further find that said defendant, . . . committed two or more related felonies, a material element of which is fraud and embezzlement, which involved a pattern of related felony conduct which involved the taking and resulted in the loss by another person and entity of more than . . . $500,000, within the meaning of Penal Code section 186.11(a)(2)."
The defense did not request a more specific finding from the jury.
In this appeal, Moore argues the trial court was not authorized to impose sentence on the aggravated white collar crime enhancement on resentencing because "the prosecutor had not made a record, through designation on the verdict forms or otherwise, from which the trial court could determine that the jury had found the requisite element of 'related felonies' based upon the four convictions which survived appeal and were subject to resentencing upon remand." She posits that if the jury's "related felonies" finding was based on the two Berkley counts (or any of the other duplicative counts against the other victims), after one of those counts was reversed, there was no longer sufficient evidence to support the imposition of punishment for the enhancement.
Moore relies on Nilsson, in which the reviewing court reversed the aggravated white collar crime enhancement. The pleading in Nilsson specifically alleged that two counts of grand theft, but not a count of bribery, were "related felonies" within the meaning of section 186.11. After the jury found that the two counts of grand theft were not separate and distinct offenses, the trial court struck one of the counts of grand theft and found that the remaining count of grand theft and the bribery were "related felonies" for purposes of the white collar crime enhancement. (Nilsson, supra, 242 Cal.App.4th at p. 15.) The reviewing court held that because the prosecution did not plead and prove the grand theft and the bribery were related felonies, the trial court erred by imposing the white collar crime enhancement on the defendants. (Id. at p. 16.)
Unlike Nilsson, the pleading in this case alleged all of the counts were "related felonies" for purposes of the white collar crime enhancement. Based on that allegation, the jury was not instructed to make specific findings as to which felony convictions were "related felonies." In addition, they were informed, without objection, that if they found Moore had committed the charged felonies beyond a reasonable doubt, the facts underlying those convictions conclusively established the elements of the aggravated white collar criminal enhancement. The verdict form recites the jury's finding that the defendant committed two or more related felonies. At trial, Moore did not object to the jury instructions, the prosecutor's argument, or the verdict form. Moreover, although Moore argued in her first appeal that the charges of grand theft should not have gone to the jury because grand theft and embezzlement, and grand theft and financial elder abuse, were not separate offenses, she did not argue that in the event this court reversed the grand theft convictions, the aggravated white collar crime enhancement also should be reversed.
To the extent the issue has not been forfeited on appeal, we find no support in the record for the premise of Moore's argument—that the jury's "related felonies" finding was based only on felonies committed "against the same victim on two or more separate occasions" (for example, grand theft and embezzlement from Berkley). (§ 186.11, subd. (a)(1).) In view of the charging document, the jury instructions, the prosecutor's closing remarks, and the strength of the evidence, the record supports the reasonable inference that the jury found all the felonies were related in returning a true finding on the aggravated white collar crime enhancement, which were "felonies committed against two or more separate victims." (§ 186.11, subd. (a)(1).) Thus, the facts that increased the penalty for a crime beyond the prescribed statutory maximum were proved beyond a reasonable doubt, and submitted to and found by the jury. (Apprendi, supra, 530 U.S. at p. 490.)
The Aggregate Takings Enhancement
1. Relevant Legal Principles
Section 12022.6 is an independent enhancement statute that applies, as relevant here, when any person takes any property in the commission of a felony, with the intent to cause that taking. (People v. Lai (2006) 138 Cal.App.4th 1227, 123; § 12022.6, subd. (a).) The imposition of an additional prison term for aggregate takings operates on a sliding scale. (Lai, at p. 1238.) At the time of Moore's conviction, sentencing, and resentencing, section 12022.6 required the trial court to impose an additional and consecutive sentence enhancement on a defendant as follows: a one-year term for a property loss exceeding $65,000; two years for a loss greater than $200,000; three years for a loss greater than $1.3 million; or four years for a loss exceeding $3.2 million. (§ 12022.6, subd. (a).)
On January 1, 2018, section 12022.6 was repealed by its own terms: "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." (§ 12022.6, subd. (f).)
The Legislature did not enact a new version of section 12022.6 before January 1, 2018. There is currently urgency legislation pending to restore section 12022.6 to the Penal Code. If passed, the legislation would take effect immediately. (See, Assem. Bill No. 1511 (2007-2008 Reg. Sess.) <http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB1511> [as of June 28, 2018], archived at <https://perma.cc/VBL4-W4TA>.) As currently proposed, the new version of the statute allows, but does not require, the trial court to impose an additional and consecutive term of up to two years for property loss exceeding $235,000; up to three years if the property loss exceeds $1.5 million; or up to four years if the property loss exceeds $3.7 million. (Assem. Bill No. 1511 (2007-2008 Reg. Sess.).)
2. Additional Factual Background
The court gave three instructions to the jury on the aggregate takings enhancement under section 12022.6. For the counts of grand theft of military survivor benefits, the instruction stated: "If you find the defendant guilty of the crime[s] charged in Counts 5 and/or 6, you must then decide whether the People have proved the additional allegation that the value of the property taken was more than $65,000 . . . . [¶] To prove this allegation, the People must prove that: [¶] 1. In the commission of the crime, the defendant took property; [¶] 2. When the defendant acted, she intended to take the property; [¶] AND [¶] 3. The loss caused by the defendant's taking the property was greater than $65,000 . . . ."
The second instruction stated, "If you find the defendant guilty of the crime[s] charged in Counts 3 and 4 [grand theft and embezzlement from Anderson], you must then decide whether the People have proved the additional allegation that the value of the property taken was more than $200,000. . . ."
The third instruction pertained to the counts of grand theft and embezzlement from Berkley, and grand theft and financial elder abuse from Markovich. The People were required to prove beyond a reasonable doubt that the value of the property taken from each of those victims was greater than $1.3 million.
As relevant here, the jury returned special findings as follows:
Embezzlement (Anderson), loss greater than $200,000;The jury did not return a special finding on the amount of Moore's takings from Berkley.
Grand Theft (military survivor benefits), loss greater than $65,000;
Financial Elder Abuse, loss greater than $1.3 million;
At resentencing, in addition to the five-year sentence imposed for the aggravated white collar crime enhancement, the trial court imposed the following consecutive sentences under section 12022.6: financial elder abuse, three years (§ 12022.6, subd. (a)(3)); embezzlement, eight months (§ 12022.6, subd. (a)(2)); and grand theft, four months (§ 12022.6, subd. (a)(1)). 3. The Repeal of Section 12022.6 Does Not Apply Retroactively
The lengths of the section 12022.6 sentence enhancements are the same as those imposed at the sentencing hearing on November 7, 2014.
The enhancement sentences on the subordinate counts of embezzlement and grand theft of military survivor benefits were calculated at one-third the middle term. (§ 1170.1, subd. (a).)
Moore contends because section 12022.6 has been repealed and her case is still pending on appeal, this court must strike the punishment imposed under that section. (In re Estrada (1965) 63 Cal.2d 740, 748 (Estrada); People v. Rossi (1976) 18 Cal.3d 295, 304; People v. Collins (1978) 21 Cal.3d 208, 212 [repeal of criminal statute without a saving clause terminates all criminal prosecutions not reduced to final judgment].) Moore asserts this issue is controlled by People v. Nasalga (1996) 12 Cal.4th 784 (Nasalga), in which the California Supreme Court determined that the defendant, whose conviction was not yet final, was entitled to the benefit of the reduced sentence enhancement of the 1992 amendment to section 12022.6, which became operative after the defendant committed the crime. (Nasalga, at p. 787.)
The People argue Moore's punishment under section 12022.6 is appropriate because her conduct predated its repeal. The People contend this issue is controlled by In re Pedro T. (1994) 8 Cal.4th 1041 (Pedro T.), in which the California Supreme Court determined that the planned repeal of a punishment provision did not demonstrate a legislative intent to reduce punishment for all cases that were not yet final as of the repeal date. (Id. at pp. 1045-1050.) The People state if the Legislature passes the pending replacement statute before this case becomes final on appeal, then Nasalga may apply to require any increased monetary threshold be given retroactive effect. If that occurs, the People ask for the option of retrying the section 12022.6 enhancements.
The request to retry the section 12022.6 enhancements in which the jury has determined the dollar amount of the property loss is untenable. (Cf. People v. Fields (1996) 13 Cal.4th 289, 299 [double jeopardy clause protects against a second prosecution for the same offense after conviction].)
Estrada holds that when a statute has been amended to mitigate punishment and there is no saving clause, the amendment will operate retroactively to impose the lighter punishment. (Estrada, supra, 63 Cal.2d at p. 748.) Similarly, the outright repeal of a criminal statute without a saving clause bars prosecution for violations before the repeal. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1286 (Bourquez), citing Sekt v. Justice's Court of San Rafael Township (1945) 26 Cal.2d. 297, 304.) However, an express saving clause is not "the only means to save rights in pending actions." (Bourquez, at p. 1284.)
In Pedro T., the California Supreme Court stated an express saving clause was not required because courts have no authority to dictate "the forms in which laws must be written to express the legislative intent." (Pedro T., supra, 8 Cal.4th at pp. 1048-1049.) "[W]hat is required is that the Legislature demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it." (Id. at p. 1049; Bourquez, supra, 156 Cal.App.4th at p. 1284.) The Court also observed "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 the enhanced punishment apply to offenses committed throughout its effective period." (Pedro T., at p. 1049.) In assessing whether the planned repeal of a statute imposing additional penalties for vehicle theft applied retroactively, the Court looked to the statement of purpose the Legislature made when enacting the repealed statute. The Legislature expressly declared that the increased penalties were necessary to serve the public interest. (Id. at p. 1046.) The Court also considered the practical effect of retroactivity in determining that the Legislature did not intend the planned repeal of the statute increasing penalties for vehicle theft to apply retroactively. (Id. at pp. 1046, 1048.)
Nasalga does not compel a different result in this case. In Nasalga, the defendant argued because section 12022.6 was amended prior to final judgment in her case and because the amendment reduced the punishment for the threshold dollar amount of the property loss in her case from two years to one year, she was entitled to the benefit of the amendment. (Nasalga, supra, 12 Cal.4th at pp. 789-790.) Because the statute did not contain an express saving clause, the Court looked for other indications of legislative intent to apply the amended statute prospectively. (Id. at p. 794.) The Court found that unlike Pedro T., nothing in the legislative history of section 12022.6 demonstrated the intent to punish persons whose theft occurred before the statutory amendment more harshly than others whose theft of the same amounts occurred after the amendment, commensurate with inflation. (Nasalga, at p. 795.) In view of the Legislature's failure to amend section 12022.6 to express its intent that the amendments apply prospectively only, the Court held that the defendant was entitled to the reduced punishment. (Id. at pp. 797-798.)
After Nasalga was decided in 1996, the Legislature amended section 12022.6. (Stats. 2007, ch. 420, § 1, p. 3635; Stats. 1998, ch. 454, § 2, p. 3228; Stats. 1997, ch. 551, § 2, p. 3333.).) The 2007 amendments to section 12022.6 were operative during Moore's trial and sentencing. In examining the amended statute and its legislative history, we do not find evidence to show that the Legislature intended to apply the planned repeal of the statute to ameliorate punishment for offenses committed throughout its effective period. (Pedro T., supra, 8 Cal.4th at p. 1049.)
In 2010, the Legislature reenacted section 12022.6 as part of a nonsubstantive reorganization of deadly weapons statutes prepared by the California Law Revision Committee, as directed by prior legislation. (Senate Com. on Public Safety, Analysis of Senate Bill No. 1080 (2009-2010 Reg. Sess.) as amended March 23, 2010.) Because the reorganization did not alter section 12022.6, the 2007 amendments to 12022.6 are operative here.
The 2007 amendment raised the monetary thresholds for imposition of the sentence enhancements. (Stats. 2007, ch. 420, § 1, p. 3635.)
In amending section 12022.6, presumably aware of the Court's holding in Nasalga, the Legislature stated: "It is the intent of the Legislature that the amendments to Section 12022.6 of the Penal Code by this act apply prospectively only and shall not be interpreted to benefit any defendant who committed any crime or received any sentence before the effective date of this act." (Stats. 2007, ch. 420 (Assem. Bill No. 1705) § 2; cf. People v. Green (2011) 197 Cal.App.4th 1485, 1489 fn. 3 (Green) [the higher monetary threshold amounts enacted in 2007 applied prospectively only].) In enacting substantive changes to section 12022.6 in 2007, the Legislature considered the Assembly Floor Analysis, which states in part, " 'Penal Code Section 12022.6, enacted approximately  years ago on July 1, 1977, is one of California's original determinate sentencing enhancements. The excessive takings enhancements are extremely important in the prosecution of "white-collar" crime in California. Without the enhancements, the penalties for the theft or destruction of property worth $2.5 million are the same as the theft of property worth $.' " (Assem. Floor Analysis, Concurrence in Senate Amendments of Assem. Bill No. 1705 (2007-2008 Reg. Sess.) as amended July 9, 2007.)
In addition, the current Senate Public Safety report on the proposed legislation to reenact section 12022.6 refers to the Legislature's history of "overwhelming support for this statute" since it was first enacted in 1977, noting that "many 'white collar' crimes are especially difficult to prosecute because the perpetrators are often sophisticated criminals who have attempted to conceal their activities through a series of complex transactions. Penal Code section 12022.6 imposes penalty enhancements that punish these acts and help deter criminals from causing significant economic damage during the commission or attempted commission of a felony." (Senate Com. on Public Safety, Analysis of Assem. Bill No. 1511 (2017-2018 Reg. Sess.) May 15, 2018.)
We also consider the practical effect of a contrary rule, which would arbitrarily remove commensurate punishment for defendants whose cases happened to be pending at the time of the planned repeal, prior to any reenactment of section 12022.6. (Pedro T., supra, 8 Cal.4th at p. 1046.) The legislative history of section 12022.6 clearly shows the Legislature intended to impose longer prison terms on a person who caused property loss in excess of specified threshold amounts. Concluding otherwise would mean the same punishment that applied to someone who stole $901 in merchandise from a store would also apply to situations like Moore's, in which she wreaked havoc on her victims' lives by stealing in excess of two million dollars from them, including the life savings of an elderly woman.
We conclude that the Legislature has demonstrated its intent with sufficient clarity to show the planned repeal of section 12022.6 applies prospectively only. (Pedro T., supra, 8 Cal.4th at p. 1049; cf., Green, supra, 197 Cal.App.4th at p. 1489, fn. 3.) There is no evidence of a contrary legislative purpose to ameliorate punishment for persons who stole in excess of the monetary threshold amounts during the effective period of the statute. (Pedro T., at p. 1049.) Thus, the planned repeal of section 12022.6 does not apply to mitigate Moore's punishment.
The issue whether any reenactment of section 12022.6 will apply to cases not yet final on appeal is not before us. A clear statement of Legislative intent to apply or not apply the statute retroactively will promote the interests of judicial economy and efficiency.
We now discuss Moore's argument that the victims' aggregate losses arose from a common scheme or plan, and therefore the trial court erred in imposing three separate enhancement terms under section 12022.6. 4. The Trial Court Did Not Abuse Its Discretion in Imposing Separate Enhancement Terms
Section 12022.6, subdivision (b) states: "In any accusatory pleading involving multiple charges of taking, damage, or destruction, the additional terms provided in this section may be imposed if the aggregate losses to the victims from all felonies exceed the amounts specified in this section and arise from a common scheme or plan." (Italics added.) Moore contends the trial court erred in imposing three additional terms under section 12022.6 because this court held that all of her convictions were interrelated and did not occur as isolated events. (Moore I, § G.) Moore posits this court's conclusion not only supports a finding that her offenses constituted "a single pattern of felony conduct" for purposes of the aggravated white collar crime enhancement but also a finding that the offenses "arise from a common scheme or plan" within the meaning of section 12022.6, subdivision (b). She contends, under this court's definition of "common scheme or plan" (Green, supra, 197 Cal.App.4th at p. 1502), section 12022.6, subdivision (b) requires the court to aggregate takings on the counts of embezzlement, grand theft, and financial elder abuse. Moore argues this court should strike or stay the terms imposed under section 12022.6, subdivision (a) to avoid violating section 654's prohibition against duplicative punishment.
"[S]ection 12022.6, subdivision (a), imposes sentence enhancements when the defendant 'takes, damages, or destroys any property in the commission or attempted commission of a felony' if the loss exceeds specified amounts. Subdivision (b) of that section permits the aggregation of losses from multiple charges if they 'arise from a common scheme or plan.' ( . . . § 12022.6, subd. (b).) The Legislature added the 'common scheme or plan' language in 1992. (See [Green, supra, 197 Cal.App.4th at p. 1493].) This language indicates the Legislature intended, or at least was aware, that multiple convictions can arise from multiple acts even if part of a common scheme or plan." (People v. Whitmer (2014) 59 Cal.4th 733, 741-742.)
"To prove 'common scheme or plan' for purposes of [section 12022.6], we compare the losses from [the felonies at issue] and determine whether there are a ' "concurrence of common features that the various [losses] are naturally to be explained as caused by a general plan of which they are the individual manifestations." ' [Citation.] Further, the 'common features' 'must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.' [Citation.]" (Green, supra, 197 Cal.App.4th at p. 1502 [reversing § 12022.6 enhancement where aggregate losses did not arise from a common plan or scheme].)
For purposes of addressing Moore's argument we assume, without deciding, the facts underlying this court's holding that Moore's felonies constituted "a single pattern of felony conduct" also support the finding the felonies "arise from a common scheme or plan." We nevertheless reject Moore's argument.
A "pattern of related felony conduct" is defined as "engaging in at least two felonies that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics, and that are not isolated events," and "two or more related felonies" means "felonies committed against two or more separate victims, or against the same victim on two or more separate occasions." (§ 186.11, subd. (a)(1).)
In Green, this court explained:
"As originally enacted, section 12022.6 contained no provision for aggregating losses. In People v. Bowman (1989) 210 Cal.App.3d 443, 446, the court reluctantly struck the one-year enhancement imposed against the defendant under then applicable section 12022.6 because the 'value of the property taken [by defendant] in the commission of any one of the 10 felonies for which defendant [was] convicted was not in excess of $25,000 [(then the statutory minimum)]' and because the language of the statute did not allow the
jury to aggregate the value of all the property taken in the commission of all 10 felonies.
"In explaining it felt 'compelled' to strike the enhancement, the court in People v. Bowman noted that result was inconsistent with the purpose of the enhancement provision, which was to deter large-scale crime. (People v. Bowman, supra, 210 Cal.App.3d at p. 447.) The court also went on to note: 'It seems inconsistent to enhance one sentence where the defendant commits a single burglary and takes property valued in excess of $25,000 and not enhance the sentence where defendant commits multiple burglaries, none of which involve property with a value in excess of $25,000 but which, when aggregated, exceed $25,000. Both defendants have engaged in large-scale crime and yet only the first defendant receives an enhanced sentence. Clearly the defendant who commits multiple burglaries poses the same, if not a greater, threat to society. The illogic of this inconsistent treatment is particularly compelling in a case such as this [one] where there is but one victim. Clearly, as to the victim, it makes no difference whether the defendant commits multiple crimes or but one; the loss is the same. Similarly, in light of the purpose of the statute, the consequences to the defendant should be the same. We urge the Legislature to consider amending section 12022.6 to rectify this apparent inconsistent treatment.' (Ibid., fn. omitted, italics added.)
"In response, the Legislature in 1990 amended section 12022.6 to permit aggregation of losses. (See Legis. Counsel's Dig., Assem. Bill No. 3087 (1989-1990 Reg. Sess.) 5 Stats. 1990, Summary Dig., p. 642 ['This bill would state that in any accusatory pleading involving multiple charges of taking, damage, or destruction of the property, the additional terms provided . . . may be imposed if the aggregate losses to the victims from all felonies exceed the amounts specified in the law.' (italics added)]; see also Assem. Com. on Public Safety, Rep. on Assem. Bill No. 939 (1991-1992 Reg. Sess.) Apr. 23, 1991, p. 2 ['Last year, the Legislature enacted AB 3087 (Hayden—Chapter 1571, Statutes of 1990) which allowed amounts taken, damaged or destroyed against a series of victims to be aggregated in determining whether the various thresholds for the enhancement were applicable,' and which 'was in response to People v. Bowman, (1989) 210 Cal.App.3d 443 . . .'].)" (Green, supra, 197 Cal.App.4th at pp. 1492-1493.)
In arguing section 12022.6, subdivision (b) requires the trial court to aggregate amounts for purposes of the aggregate takings enhancement, Moore disregards this court's discussion in Green explaining that the Legislature enacted section 12022.6, subdivision (b) to give the court the discretion to impose the enhancement when the losses for any one felony does not meet the statutory minimum for an enhancement under section 12022.6, subdivision (a)(1)-(4), but the aggregate losses to the victims from all felonies exceed the amounts specified in that subdivision. (Green, supra, 197 Cal.App.4th at pp. 1492-1493.) It is a well-established rule of statutory construction that the word "may" is ordinarily construed as permissive and "shall" is ordinarily construed as mandatory. (People v. Guarneros (2016) 5 Cal.App.5th 42, 49; cf. § 12022.6, subd. (a) [court shall impose an additional term under subd. (a)(1)-(4)] with § 12022.6, subd. (b) [additional terms may be imposed].)
Here, the trial court complied with the directives of section 12022.6, subdivision (a). Because the amount of the taking of each felony exceeded the statutory amounts specified, the court was required to impose an additional term for each felony conviction. This did not result in improper double punishment under section 654.
The Court Did Not Abuse Its Discretion in Imposing the Upper Term on the Principal
Count and the Aggravated White Collar Crime Enhancement
Moore argues the court abused its discretion in imposing the upper term on the count of financial elder abuse and the aggravated white collar criminal enhancement. She contends the court erred in relying on her lack of remorse as an aggravating factor. Moore also asserts the court improperly used an element of the crime—breach of trust—as an aggravating factor, and requests the matter be remanded for resentencing without consideration of this factor.
The California Supreme Court has held that "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) We therefore agree with the People's position that Moore has forfeited her argument on appeal. Even if the argument were not forfeited, the record shows the trial court did not abuse its discretion in imposing the upper term on the count of financial elder abuse and the aggravated white collar crime enhancement.
The record shows that the court, in considering whether there were any mitigating factors, asked Moore's former husband, Dr. Fox, whether Moore had expressed any remorse for her criminal acts. Fox said she had not expressed any remorse to him. While we agree the record shows that Fox's interactions with Moore were limited, the court did not rely on his statement. Instead, the court asked the same question of Counsel, who said they had nothing on record to present to the court on the subject of remorse.
We reject the argument Counsel failed to obtain a statement from Moore or other evidence to include in the record. Moore was aware of the resentencing hearing and had waived her right to be present after discussions with Counsel. Nothing prevented her from filing a statement with the court, the probation department, or asking Counsel to speak on her behalf.
After asking whether Moore had expressed any remorse and determining that the only mitigating sentencing factor was Moore's lack of any significant prior criminal history, the court turned to its assessment of aggravating sentencing factors. The record therefore belies Moore's assertion the court improperly used her lack of remorse as a key factor in its decision to impose the upper term.
Factors in aggravation include whether the victim was particularly vulnerable; the manner in which the crime was carried out indicates planning, sophistication, or professionalism; the crime involved an actual taking of great monetary value; and the defendant took advantage of a position of trust or confidence to commit the offense. (Cal. Rules of Court, rule 4.421(a).) The court found the factors in aggravation were Moore's violation of the trust of two sophisticated victims and one very unsophisticated victim, who were all vulnerable because they trusted Moore and she took advantage of them.
Further unspecified rule references are to the California Rules of Court.
Moore contends the court improperly relied on breach of trust as an aggravating factor because it is an element of the crime. (Rule 4.420(d) [court is prohibited from using a fact that is an element of the crime to impose a greater term].) She argues fraud is "any act . . . that involves a breach of duty, trust, or confidence." (People v. Talbot (1934) 220 Cal. 3, 15 [citing dictionary definition].) "A sentencing factor is an element of the offense if the crime as defined by statute cannot be accomplished without the performance of the acts which constitute such factor." (People v. Clark (1992) 12 Cal.App.4th 663, 666.)
The court imposed the upper term on the principal count of financial elder abuse and the aggravated white collar criminal enhancement. Financial elder abuse occurs when a defendant violates any provision of the law proscribing theft, embezzlement, forgery, or fraud with respect to the property of an elder, and who knows or should have known that victim is an elder. (§ 368, subd. (d).) Moore was convicted of financial elder abuse on a theory of theft by false pretenses. (See Moore I, § E.1.) The elements of the theory of theft on which Moore was convicted are: "(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, quoting People v. Wooten (1996) 44 Cal.App.4th 1834, 1842.) Thus, the court did not consider an element of the crime as an aggravating factor when it imposed the upper term on Moore's conviction for financial elder abuse.
The aggravated white collar crime enhancement applies when any person 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 $100,000. (§ 186.11, subd. (a).) Moore argues that "breach of trust" is an element of embezzlement. (§ 503 [embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted].) To the extent the imposition of the upper term on the aggravated white collar criminal enhancement was based on embezzlement, we are not persuaded that the court was referring to a breach of fiduciary trust. "The offense of embezzlement contemplates a principal's entrustment of property to an agent for certain purposes and the agent's breach of that trust by acting outside his authority in his use of the property." (People v. Sisuphan (2010) 181 Cal.App.4th 800, 813-814.)
Here, the court heard the victim describe the betrayal of their personal relationships with Moore. Anderson said he acted as a father figure and mentor to Moore. She had been a part of his family for 20 years, and he was emotionally devastated by her betrayal. Berkley said he was "unlucky when [he] met and grew to trust [Moore] 20 years ago." Markovich told the court she had loved Moore and had welcomed her into her family. The victims did not mention Moore's role as their agent and the breach of her fiduciary responsibilities.
The record leaves no doubt that Moore was a sophisticated criminal who caused significant economic damage to her victims, their families and employees. She devised a sophisticated scheme that allowed her to thieve from multiple victims for years. Moore's crimes not only devastated her victims, both financially and emotionally, they impacted their families and employees as well. She deprived an elderly woman in poor health of her life savings, causing her health to further deteriorate and placing the burden for her care and support on her children. Moore's embezzlement of funds from Berkley's restaurant resulted in the collapse of his businesses. One hundred and twenty employees lost their jobs. Moore caused significant financial damage and indescribable emotional harm to Anderson, who had welcomed her into his family.
The court imposed the upper term on Moore's conviction for financial elder abuse and the aggravation white collar crime enhancement, finding that Moore had violated the trust of her victims. In addition, the court found that the manner in which Moore carried out her crimes involved planning and sophistication, the crimes involved an actual taking of great monetary value, and the defendant took advantage of a particularly vulnerable victim. (Rule 4.421(a).) Thus, there are ample factors in aggravation to support the imposition of the full term on the principal count and the aggravated white collar crime enhancement.
The Sentencing Minutes and the Abstract of Judgment Must Be Amended to Reflect the
Correct Fees and Assessments
At Moore's initial sentencing, the trial court imposed a court security fee in the amount of $320 (§ 1465.8) and a criminal conviction assessment in the amount of $240 (Gov. Code, § 70373). At resentencing, the trial court ordered that "[a]ll fines and fees set at the last hearing will remain in effect." Moore asserts those "fines and fees" constitute an unauthorized sentence because this court had reversed four of her convictions. She argues because she stands convicted of four counts, not eight, the court security fee should be assessed at $160 and the criminal conviction assessment should be $120.
The assessment mandate by Government Code section 70373 has been referred to as the "criminal conviction assessment" (People v. Castillo (2010) 182 Cal.App.4th 1410, 1412; People v. Calles (2012) 209 Cal.App.4th 1200, 1204), the "court facilities fee" (People v. Cortez (2010) 189 Cal.App.4th 1436, 1443), and the "court facilities assessment" (People v. Sencion (2012) 211 Cal.App.4th 480, 483 (Sencion)). --------
We reject the People's assertion Moore has forfeited this issue on appeal by failing to raise it at resentencing. The " 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (Scott, supra, 9 Cal.4th at p. 354.) "Although the cases are varied, a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing." (Ibid.)
Section 1465.8 requires the court to impose an assessment of $40 "on every conviction for a criminal offense," except certain Vehicle Code violations. Government Code section 70372 imposes as assessment of $35 on each felony conviction to ensure and maintain adequate funding for court facilities. Here, the alleged error is "clear and correctable" and involves only legal, not factual, issues. Therefore, the issue has not been forfeited on appeal. (Scott, supra, 9 Cal.4th at p. 354.)
The court security fee and the criminal conviction assessment apply to each count of which a defendant is convicted. (Sencion, supra, 211 Cal.App.4th at p. 483.) The reversal of four of Moore's convictions by this court placed the parties in the same position as if Moore had not been tried and convicted on those counts. (Cf. In re Cruz (2003) 104 Cal.App.4th 1339, 1350; see People v. Eroshevich (2014) 60 Cal.4th 583, 594 [when an order has been reversed it no longer has any vitality or force].) The court cannot impose court security fees and criminal conviction assessments on convictions that no longer exist.
The orders imposing a court security fee and a criminal conviction assessment on each of the four counts (counts 1, 3, 8, and 10) that were reversed by this court in Moore I are vacated. The trial court shall ensure that the abstract of judgment is modified to reflect court security fees in the amount of $160 and criminal conviction assessments in the amount of $120, and sent to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.