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People v. Tarbutton

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jun 4, 2020
G055717 (Cal. Ct. App. Jun. 4, 2020)

Opinion

G055717 G057092

06-04-2020

THE PEOPLE, Plaintiff and Respondent, v. THOMAS FRANKLIN TARBUTTON, Defendant and Appellant.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Fraiser and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11CF2747) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Fraiser and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury found defendant Thomas Franklin Tarbutton guilty of 17 counts of grand theft, 11 counts of securities fraud, nine counts of forgery, and one count of using a (Ponzi) scheme to defraud. The jury also found true a "large takings" enhancement (over $3.2 million). After the jury returned its verdicts, the court granted Tarbutton's motion to represent himself. (Faretta v. California (1975) 422 U.S. 806 (Faretta).)

Nine months later, Tarbutton moved to continue his sentencing hearing and/or to reappoint counsel. The trial court denied the motions as untimely and imposed a prison term of 34 years and four months, which included four years for the large takings enhancement. (Former Pen. Code, § 12022.6, subd. (d).) The large takings statute has since been repealed by operation of law (a sunset clause).

Further undesignated statutory references are to the Penal Code.

Tarbutton contends the trial court: committed instructional errors as to juror unanimity; committed sentencing errors as to multiple punishments (§ 654); and abused its discretion when it denied his motions to continue and/or to reappoint counsel. Tarbutton also contends the repeal of former section 12022.6 applies retroactively.

We disagree and affirm the judgment.

I

FACTS AND PROCEDURAL HISTORY

This is a securities fraud case involving "hard money" loans. A hard money loan is usually a short term, high interest rate loan secured by real property. Generally, the lender holds a recorded deed of trust; if the borrower defaults on the loan, the lender can then foreclose on the real property.

From 2004 to 2010, Tarbutton operated Villa Capital, a purported hard money lending company in Irvine. Tarbutton represented to potential investors they could fund a short-term loan (usually two to four years), to a qualified borrower for a specific dollar amount (from $25,000 to $230,000). Each loan was to be secured by a recorded first or second deed of trust on the borrower's real property. The potential investors were to receive monthly interest payments (13 to 15%) and get back their principal investment at the end of the loan term (usually a balloon payment). Tarbutton arranged and facilitated all the transactions.

Eleven individuals (or in some cases couples) made numerous investments with Tarbutton. Prior to each investment, Tarbutton routinely gave each person an investment folder, which generally included a credit report on the borrower, an independent appraisal of the real property, and an outline of the terms of the loan agreement. The folder also sometimes included a purported deed of trust.

Initially, Tarbutton sent the investors their promised monthly interest payments during the loan term. Tarbutton established and controlled bank accounts for the benefit of some investors (FBO accounts) and notified these investors when the monthly payments had been deposited into their FBO accounts. But by 2010, all the investors stopped receiving their monthly interest payments. Tarbutton had depleted the investors' FBO accounts, and he did not return the investors' principal investments. Tarbutton fled to South America after being contacted by the FBI.

The 11 investors eventually discovered the underlying loans Tarbutton had presented were nonexistent. Tarbutton admitted to one of the investors that all the loans were "'bogus.'" As to some of the loans, Tarbutton had not recorded the underlying deeds of trust. As to others, Tarbutton had forged the deeds of trust. Tarbutton had been using money from newer investors to make payments to the earlier investors (a classic Ponzi scheme). Authorities eventually extradited and arrested Tarbutton.

Tarbutton's Defense

Tarbutton testified on his own behalf. Tarbutton admitted he had presented the investment folders to the investors. However, Tarbutton claimed he told the investors they were not investing in individual loans (securities); rather, they were investing in his company Villa Capital. Tarbutton admitted he forged some of the documents, but he claimed he did so at the request of the investors.

Court Proceedings

The prosecution filed a 38-count information alleging one count of using a (Ponzi) scheme to defraud. In the remaining 37 counts, the prosecution alleged 11 counts of securities fraud (as to each victim), 17 counts of grand theft (as to each payment by a victim), and nine counts of forgery (as to each document):

Victims (11)

Security Frauds (11)By Date or Date Range

Grand Thefts (17)By Amount

Forgeries (9)By Date

Martin A.

➢ 2/15/07 to 5/13/08

➢ $230,000➢ $55,000➢ $50,000➢ $44,000➢ $25,000

➢ 11/14/07➢ 5/21/08

Larry R.

➢ 1/28/09 to 2/9/10

➢ $125,000➢ $65,000

➢ 2/9/10

William S.

➢ 9/25/08

➢ $91,500

George K.

➢ 8/4/09 to 4/17/10

➢ $649,000

➢ 9/1/09➢ 12/23/09

Raymond I.

➢ 12/3/09 to 6/15/10

➢ $137,500➢ $84,400➢ $42,500

➢ 2/18/10➢ 3/02/10➢ 6/01/10➢ 6/15/10

Jack L.

➢ 9/26/09 to 4/15/10

➢ $175,000➢ $137,500

Robert P.

➢ 6/25/08 to 5/10/10

➢ $925,866

Linda M.

➢ 8/25/06

Jesse B.

➢ 3/26/09

➢ $53,000

Karen O.

➢ 6/22/09

➢ $60,000

Brian, Karen F.

➢ 9/2/09

In January 2016, the jury found Tarbutton guilty on all counts. The jury also found true a large takings enhancement (over $3.2 million), and an aggravated white-collar crime enhancement (over $500,000).

In February 2017, Tarbutton filed a Faretta motion to represent himself. The trial court granted the motion.

On November 3, 2017, Tarbutton moved to continue the sentencing hearing and/or for the reappointment of counsel. The court denied the motions as untimely. The court imposed a prison term of 34 years and four months, which included four years for the large takings enhancement.

II

DISCUSSION

Tarbutton claims: A) the trial court committed two instructional errors regarding juror unanimity; B) the court committed sentencing errors related to multiple punishments (§ 654); C) the court abused its discretion when it denied his motions to continue and/or to reappoint counsel; and D) the sunsetting of the large takings statute applies retroactively because his case is still on appeal. A. Claimed Instructional Errors as to Juror Unanimity (2)

We review instructional error claims de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) We determine whether the trial court fully and fairly instructed the jury on the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In making this determination, we consider the instructions taken as a whole; we presume jurors are intelligent people capable of understanding and correlating all the court's jury instructions. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220.)

The jurors in a criminal case must unanimously reach a verdict. (Cal. Const., art. I, § 16.) As such, a trial court has a duty to give the jury a unanimity instruction when "there is evidence that more than one crime occurred, each of which could provide the basis for conviction under a single count." (People v. Grimes (2016) 1 Cal.5th 698, 727.) The unanimity instruction tells the jury: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed." (CALCRIM No. 3500, italics added.)

However, while all the jurors must agree on the alleged act the defendant committed, the jurors do not have to agree on the legal theory supporting the defendant's guilt. (People v. Santamaria (1994) 8 Cal.4th 903, 918-919 ["as long as each juror is convinced beyond a reasonable doubt that defendant is guilty . . . , it need not decide unanimously by which theory he is guilty"]; People v. Perez (1993) 21 Cal.App.4th 214, 222 ["'it is unnecessary jurors unanimously agree on the theory of criminal culpability supporting their unanimous conclusion of guilt'"].)

1. Claimed Instructional Error as to Grand Theft Charges

Tarbutton claims the trial court erred by instructing the jury with a pattern instruction that told the jurors they did not have to unanimously agree on the theory of theft as to the 17 grand theft counts. (CALCRIM No. 1861.) We disagree.

In California, there are various forms (or theories) of theft including: larceny, embezzlement, and false pretenses. "Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another [i.e., larceny], or who shall fraudulently appropriate property which has been entrusted to him or her [i.e., embezzlement], or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property [i.e., false pretenses], . . . is guilty of theft." (§ 484, subd. (a).)

The prosecution's evidence often supports a defendant's conviction under more than one form (or theory) of theft. (See, e.g., People v. Kagan (1968) 264 Cal.App.2d 648 [evidence supported conviction under larceny by trick, embezzlement, and false pretenses].) However, it is well established that a jury is not required to agree on the form (or theory) of theft. (People v. Counts (1995) 31 Cal.App.4th 785, 793 ["In California, the ancient common law distinctions . . . no longer exist . . . ; under section 484, there is simply one consolidated crime of theft, which the jury may find upon either theory"]; People v. Ramirez (1980) 109 Cal.App.3d 529, 540 ["It is not necessary that the jury agree upon which category of theft was committed, so long as there is sufficient evidence of at least one of the types of theft"].)

The prosecution charged Tarbutton with 17 counts of grand theft. The court instructed the jury on two forms (or theories) of theft: theft by false pretenses and theft by embezzlement. (CALCRIM Nos. 1804 & 1806.) The court further instructed the jury they did not have to unanimously agree on the theory of theft: "The defendant has been prosecuted for theft under two theories: Grand Theft by false pretenses and grand theft by embezzlement. [¶] Each theory of theft has different requirements, and I have instructed you on (both). [¶] You may not find the defendant guilty of Grand Theft unless all of you agree that the People have proved that the Defendant committed theft under at least one theory. But all of you do not have to agree on the same theory." (CALCRIM No. 1861.)

Here, the trial court properly instructed the jury using the correct jury instruction. (See Cal. Rules of Court, rule 2.1050(a) ["jury instructions approved by the Judicial Council are the official instructions"].) Further, the jury instruction is an accurate statement of the law. (See People v. Counts, supra, 31 Cal.App.4th at pp. 792-793.) Moreover, our review of the record confirms there is substantial evidence to support each of Tarbutton's theft convictions under at least one legal theory (false pretenses or embezzlement), and Tarbutton is not arguing otherwise. Thus, the court properly instructed the jury they did not have to unanimously agree on the form (or theory) of theft supporting Tarbutton's 17 grand theft convictions.

Tarbutton concedes CALCRIM No. 1861 is a correct statement of the law. Nevertheless, he argues "the trial court committed reversible error by instructing the jury that it did not have to unanimously agree on the theory of theft as to each count because each theory was based on appellant's alleged commission of discrete acts that occurred at different times." (Italics added.) It appears Tarbutton is conflating two concepts: the theory supporting a crime, as opposed to the act supporting a crime. Again, jurors do not have to unanimously agree on the theory supporting a crime, but jurors generally must agree on the act supporting a crime, subject to some exceptions.

Tarbutton substantially relies on People v. Norman (2007) 157 Cal.App.4th 460 (Norman), for the proposition: "when there are multiple discreet acts that could have constituted the charged offense of theft, the trial court is required to instruct on unanimity." (Italics added.) Norman is inapposite.

A trial court must give a unanimity instruction when there are multiple acts that may have constituted a single charged theft crime. (Norman, supra, 157 Cal.App.4th at pp. 464-465.) In Norman, defendant was caught breaking into an apartment's mailboxes, and he was found in possession of stolen mail from those mailboxes. (Id. at pp. 463-464.) Police searched defendant's car and found additional mail which had been stolen from various other locations. (Id. at p. 463.) The prosecution charged defendant with one count of theft; the charge referenced "'approximately 300 pieces'" of mail. (Id. at p. 465.) The prosecution "did not make an election as to which acts were to constitute the theft and, during closing argument to the jury, specifically argued both the theft of the mail in the car and the theft of the mail from the apartment complex." (Ibid.) The jury found defendant guilty; on appeal, he argued the trial court erred by failing to give a unanimity instruction. The Court of Appeal agreed. Under these circumstances "the evidence supported more than one discrete crime of theft and the prosecution not only failed to elect among the crimes, but actually argued both to the jury. Accordingly, the trial court was required to instruct the jury sua sponte that it must unanimously agree on the criminal conduct supporting the conviction." (Id. at p. 466.)

In Norman, the prosecution charged defendant with one count of theft. Here, the prosecution charged Tarbutton with 17 counts of theft. In Norman, there was room for confusion among the jurors as to which alleged acts supported the sole theft count. In this case, there was no room for confusion among the jurors as to which alleged act supported each alleged theft count. Here, in the information each theft count designated the approximate date, the victim, and the amount stolen from that victim. Further, in one of the jury instructions the court listed each of the counts with the victim's name, the approximate date, and the purported underlying loan. Moreover, the verdict forms also designated the particular victim, the purported loan, and the amount as to each theft count. Therefore, unlike Norman, the court was not required to give a unanimity instruction as to the grand theft charges.

2. Claimed Instructional Error as to Securities Fraud Charges

Tarbutton claims the court erred by failing to give a unanimity instruction as to the 11 securities fraud charges. (Corp. Code, § 25401.) We disagree.

"It is unlawful for any person to offer or sell a security in this state, or to buy or offer to buy a security in this state, by means of any written or oral communication that includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements made, in the light of the circumstances under which the statements were made, not misleading." (Corp. Code, § 25401.)

Again, a defendant in a criminal case has a right to a unanimous verdict. (Cal. Const., art. I, § 16.) The unanimity instruction addresses situations where the defendant is charged with only one offense, but the evidence demonstrates several acts, any one of which might constitute the offense. (CALCRIM No. 3500.)

However, a unanimity instruction is not required when the alleged acts are so closely connected as to form one continuing transaction or course of conduct. (People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Dieguez (2001) 89 Cal.App.4th 266, 275-276 [continuous conduct exception applied where defendant made a series of false statements during a medical visit in order to fraudulently obtain workers' compensation benefits].) That is, the continuous conduct exception applies when a defendant offers essentially the same defense to each act, and there is no reasonable basis for jurors to distinguish between the acts. (People v. Stankewitz, supra, 51 Cal.3d at p. 100.)

A unanimity instruction may not be required when the prosecution has alleged multiple counts of securities fraud involving multiple victims. (People v. Butler (2012) 212 Cal.App.4th 404 (Butler).) In Butler, defendant fraudulently promised to pay 288 investors 12 percent interest and return their principal in exchange for promissory notes. At trial, the victims testified as to defendant's multiple misrepresentations. The jury found defendant guilty of 288 counts of securities fraud. (Id. at p. 415.) Defendant argued the court erred by not giving a unanimity instruction. The Court of Appeal disagreed: "When the evidence 'shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed . . . , the jury need not unanimously agree on the basis or, as the cases often put it, the "theory" whereby the defendant is guilty.'" (Id. at pp. 425-426.) The prosecution "alleged defendant sold one security on a specific date to a single victim. The jurors were not required to agree on the particular misrepresentations or omissions they relied on for the convictions because that finding merely relates to the manner of committing the crime." (Ibid.)

In this case, similar to Butler, supra, 212 Cal.App.4th 404, the prosecution charged Tarbutton with multiple counts of securities fraud against multiple victims. Each count was associated with an identified victim, and each count alleged a specific date (or a date range). Further, Tarbutton did not offer different defenses as to each of the counts; Tarbutton's defense regarding all 11 of the securities fraud counts was that he was not selling securities; Tarbutton maintained the investments were not related to specific loans. (See People v. Stankewitz, supra, 51 Cal.3d at p. 100 [unanimity instruction not required where defendant offers same defense to each act].) Thus, the trial court was not required to give a unanimity instruction as to the securities fraud charges.

Whether an investment constitutes a security is a question for the finder of fact. (People v. Frederick (2006) 142 Cal.App.4th 400, 413.) Here, the jury found the hard money loans to be securities and this finding is not challenged on appeal. Tarbutton does argue on appeal that he had a different defense as to the forgery counts: the victims asked him to forge the deeds of trust. But this does not conflict with his overarching defense that he was not selling securities.

Tarbutton argues: "[Six of the 11 securities fraud counts] did not allege that appellant sold a security on a specific date to a single victim; instead, each count alleged a period of time during which the prohibited act occurred. Because there was more than one discrete act upon which the jurors could have based its verdicts, reversal of [these] counts . . . is required." We disagree.

The specific date (or date range) alleged is immaterial. "The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense." (§ 955.)

To illustrate, even as to the five securities fraud counts that alleged a specific date, Tarbutton may have made multiple misrepresentations on that day: there was an underlying loan (not true), there was an identified borrower (not true), the loan was backed by a deed (not true), and so on. Again, in order to sustain the 11 securities fraud charges against Tarbutton: "The jurors were not required to agree on the particular misrepresentations or omissions they relied on for the convictions because that finding merely relates to the manner of committing the crime." (Butler, supra, 212 Cal.App.4th at p. 426, italics added.) Here, the jury convicted Tarbutton of 11 counts of securities fraud; therefore, they agreed Tarbutton made untrue representations regarding sales of securities to each of the 11 victims. The jurors did not have to agree as to a particular misrepresentation by Tarbutton on a particular date. B. Sentencing Error Claims (Section 654)

The trial court sentenced Tarbutton to 34 years, four months in prison. The court imposed consecutive terms as follows: five years for using a (Ponzi) scheme to defraud (the upper term); 11 years for the 11 securities fraud convictions (one-third the three-year midterm times 11); 11 years, four months for the 17 grand theft convictions (one-third the two-year midterm times 17); four years for the large takings enhancement; and three years for the white collar crime enhancement. The court stayed the sentences on the nine forgery counts.

Tarbutton argues the trial court erred by punishing him for both the 11 securities fraud counts and the 17 grand theft counts because all these crimes occurred during the same course of conduct, and with the same intent and objective. Alternatively, Tarbutton argues the court erred by punishing him for both the 11 securities fraud counts and using a (Ponzi) scheme to defraud count because all these crimes occurred during the same course of conduct, and with the same intent and objective. We disagree.

1. General Legal Principles

A jury can convict a defendant of multiple crimes arising from a single act, but a court can punish the defendant for only one of those crimes. "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, subd. (a).) The purpose of section 654 is to ensure a defendant's punishment is commensurate with his or her culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)

If a defendant's course of conduct is divisible into separate acts, then the court can impose multiple punishments for each act; this depends on whether the defendant had a separate criminal objective for each crime. (People v. Latimer, supra, 5 Cal.4th at pp. 1207-1208.) A course of conduct that is divisible in time ordinarily supports a finding of separate criminal objectives even though the conduct shares a common overall objective. (People v. Whitmer (2014) 59 Cal.4th 733, 740-741 ["a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme"].) Section 654 does not apply "'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.'" (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289 [defendant properly punished for both arson and insurance fraud].)

Our standard of review is highly deferential: "The defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence. [Citation.] 'We review the court's determination of [a defendant's] "separate intents" for sufficient evidence in a light most favorable to the judgment, and presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence.'" (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.)

2. Relevant Proceedings

At the sentencing hearing, the trial court explained its findings under section 654 at some length, as follows:

"The court finds that the defendant entertained multiple criminal objectives which were independent and divisible in time and not merely incident to each other.

"The court further finds that every time the defendant engaged in the behavior or conduct outlined in [the securities fraud statute, Corporations Code section] 25401, he harbored an individual singular intent.

"That the duration of time between each instance gave the defendant the opportunity to reflect on his conduct. The defendant had to think and ponder and ultimately decide whether or not he wanted to continue his behavior; and therefore, . . . form independent objectives and intent on each and every occasion and not merely incidental to each other.

"The defendant had numerous opportunities . . . to reflect on what he was doing to these victims and whether or not he wanted to continue his criminal way."

The trial court continued:

"The court will also note as to the [Corporations Code section] 25401 [securities fraud] counts, that time transpired from [the defendant's] behavior or violation of these counts, i.e., providing written documents, packet of materials, and/or the accompanying oral communications made at the time or after the presentation, . . . but before the victims let the defendant take possession and ownership of the money taken and divert it in violation . . . of Penal Code section 487.

"The court finds that this was conduct, again, was divisible in time and independent of the theft counts. Divisible intent that attached at the time that each [Corporations Code section] 25401 violation occurred . . . . Again, independent objective of each other.

"[T]he court finds as to . . . [the Corporations Code section] 25541, [using a scheme to defraud count] again, the court adopts the previous analysis . . . , that again, this violation was independent of the criminal objectives of the grand theft crimes which were clearly independent of each other. This was the employment of a game plan or how to handle the defendant's overall business. The defendant's entire . . . investment company constitutes 'a course of business' to operate as to defraud . . . in connection with the investments the defendant solicited or accepted . . . , the defendant engaged in separate divisible and independent acts or practice of operating a business . . . ; and therefore, [section 654 does not apply]."

"Any person who willfully employs . . . any device, scheme, or artifice to defraud in connection with the offer, purchase, or sale of any security or willfully engages . . . , in any act, practice, or course of business which operates . . . as a fraud or deceit upon any person in connection with the offer, purchase, or sale of any security shall upon conviction . . . be punished . . . ." (Corp. Code, § 25541, italics added.) --------

3. Legal Analysis

Tarbutton committed 11 securities fraud crimes by making untrue statements regarding securities to 11 victims, both verbally and in extensive written presentations. (Corp. Code, § 25401.) As to nine of those victims, Tarbutton also committed 17 grand theft crimes: Martin A. ($230,000, $55,000, $50,000, $44,000, $25,000); Larry R. ($125,000, $65,000); William S. ($91,500); George K. ($649,000); Ray I. ($137,500, $84,400, $42,500); Jack L. ($175,000, $137,500); Robert P. ($925,866); Jesse B. ($53,000); and Karen O. ($60,000). (§ 487, subd. (a).)

However, as the court noted the fraudulent statements were made "before the victims let [Tarbutton] take possession and ownership of the money . . . in violation . . . of Penal Code section 487." That is, in each case some period of time elapsed between Tarbutton's fraudulent statements and when each of the victims wrote Tarbutton a check, or otherwise paid him the charged dollar amount. Therefore, there is substantial evidence in the record to support the court's finding that the securities fraud crimes were "divisible in time" from the grand theft crimes.

Further, based on the temporal separation between the fraud and the grand theft crimes, there is also substantial evidence in the record to support the trial court's finding that Tarbutton had "the opportunity to reflect on his conduct." (See People v. Andra, supra, 156 Cal.App.4th at p. 642 ["Given the temporal separation between these crimes, defendant had substantial opportunity to 'reflect' on her conduct and then 'renew' her intent to commit yet another crime"].) Thus, the trial court did not violate section 654 when it imposed multiple punishments (consecutive sentences) as to the 11 securities fraud convictions and the 17 grand theft convictions.

Tarbutton also argues: "Because [the securities fraud counts] encompassed acts that were pursued during the same course of conduct and with the same objective as [the use of a (Ponzi) scheme to defraud count], section 654 prohibited the court from imposing sentence on the [securities fraud] counts." We disagree.

Tarbutton's overarching scheme to defraud his investors was sprawling, sophisticated, and extensive. Tarbutton's Ponzi scheme involved at least 11 victims. The execution of Tarbutton's securities fraud scheme took place over a period of years. In short, Tarbutton's overall "course of business" was simply too broad and long lasting to establish the 11 securities fraud counts constituted only one continuous course of conduct pursuant to one objective. Thus, there is substantial evidence to support the trial court's finding that the 11 securities fraud crimes were divisible in time and objective from Tarbutton's overarching (Ponzi) scheme to defraud the 11 investors.

And again, Tarbutton's argument that his securities fraud acts were pursued toward the same objective as the overarching Ponzi scheme does not mean section 654 bars punishment for both the overall scheme and each of the 11 divisible securities fraud offenses. (See People v. Andra, supra, 156 Cal.App.4th at p. 640 ["'Under 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'"].) In sum, we find no sentencing errors under section 654. C. Motion to Continue Sentencing and/or to Reappoint Counsel

Tarbutton argues "the trial court abused its discretion by denying [his] motion for a continuance and/or his request for appointment of counsel" at the sentencing hearing. We disagree.

An abuse of discretion occurs when a court acts "in an arbitrary, capricious or patently absurd manner that result[s] in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) We will find error only if the court's decision is beyond "the bounds of reason." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)

1. General Legal Principles

Generally, continuances are disfavored in criminal cases. "[A]ll proceedings in criminal cases shall be . . . heard and determined at the earliest possible time. To this end, the Legislature finds that the criminal courts are becoming increasingly congested . . . . Excessive continuances contribute substantially to this congestion . . . ." (§ 1050, subd. (a).) Therefore, trial courts may only grant motions to continue based on a showing of good cause. (§ 1050, subd. (e).)

"A trial court has broad discretion to grant or deny continuances." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 508-509; see People v. Fuiava (2012) 53 Cal.4th 622, 650 ["'[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court'"]; People v. Jacobs (2007) 156 Cal.App.4th 728, 735-736 [same standard applies to motions to continue a sentencing hearing].) "In determining whether a denial [of a motion to continue] was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request." (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.)

Generally, a defendant has the right to forego appointed counsel and represent himself. (Faretta, supra, 422 U.S. 806.) However, "it is thereafter within the sound discretion of the trial court to determine whether such defendant may give up his right of self-representation and have counsel [re]appointed for him." (People v. Elliott (1977) 70 Cal.App.3d 984, 993.) Courts are to consider various factors when making this decision: "'(1) defendant's prior history in the substitution of counsel . . . , (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay . . . , and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.'" (People v. Lawrence (2009) 46 Cal.4th 186, 191-192.)

2. Relevant Proceedings

On January 20, 2016, the jury convicted Tarbutton. The trial court set a sentencing hearing to be held about two months later; on that day, the probation department filed a 28-page sentencing report. The court then granted multiple requests to continue the sentencing hearing so Tarbutton could prepare a motion for a new trial.

On January 13, 2017, Tarbutton's counsel declared a conflict. About a month later, Tarbutton filed a Faretta motion to represent himself, and the trial court granted the motion.

On March 3, 2017, Tarbutton told the trial court he needed further discovery. Several days later, Tarbutton requested the appointment of an investigator. Later that month, the court denied Tarbutton's request "due to inadequate showing of good cause for the expenditure of public funds for an investigator."

On June 2, 2017, Tarbutton told the trial court he was missing discovery; the prosecution said all the discovery had been turned over. In July, the court appointed Tarbutton a legal runner and set the motion for new trial in August.

On September 15, 2017, the trial court denied Tarbutton's motion for new trial and several other motions (e.g., motion for return of property, motion for experts, motion for sanctions, etc.).

On October 2, and October 23, 2017, Tarbutton filed motions to disqualify the trial judge and a writ of mandate in this court to stay the proceedings. The trial court struck the motions and this court summarily denied the extraordinary writ petition.

On October 31, the court set the sentencing hearing and advised Tarbutton there would be "no further roadblocks to . . . sentencing on Friday, November 3rd."

On November 3, 2017, Tarbutton told the trial court he had mailed a written request for a continuance. The court said it had not received the motion, but the court invited Tarbutton to state the basis for his request. Tarbutton said he wanted to refute the statements in the probation report by the victims and without a continuance he was "unable to provide myself effective representation." Tarbutton also wanted the restitution hearing to be held in conjunction with the sentencing hearing. Tarbutton said, "So I do have the right to request counsel at sentencing, and unless I get a continuance, I do invoke that right, your honor." (Italics added.)

The trial court explained to Tarbutton he would have the right to a later restitution hearing if he contested any of the victim's claimed losses. The court further explained its thinking on the motions to continue sentencing and/or to reappoint counsel:

"The court need not go through the multiple years . . . the court has had this particular case. The court will note you were found guilty on January 20th of 2016. Twenty-one and a half months later we're set here today for sentencing. During that time on January 13th of 2017, your trial counsel, Mr. Schaffer, did declare a conflict. The Public Defender was appointed January 13th, 2017. The Public Defender was relieved on February 4th, 2017, and you decided to represent yourself.

"You have repeatedly been told by this court to be prepared for your sentencing, to file a sentencing brief with this court, and to be prepared on the date of sentencing to proffer up anything you wanted this court to consider."

The trial court said it had given Tarbutton "ample time." The court denied Tarbutton's motion to continue and/or for the appointment of counsel, finding the motions were untimely. The court then sentenced Tarbutton.

3. Legal Analysis

"It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." (§ 1202.4, subd. (a)(1).) If the amount of loss cannot be ascertained at the time of sentencing, the amount shall be determined at a later restitution hearing, but there is no limitation upon when the court must set the restitution hearing. (People v. Petronella (2013) 218 Cal.App.4th 945, 970.)

Here, Tarbutton was not entitled to a restitution hearing at the same time as the sentencing hearing. Further, as the trial court pointed out, Tarbutton was given numerous opportunities to file an opposition to the victims' statements in the probation report, which had been filed nearly two years before the sentencing hearing. Therefore, Tarbutton did not establish good cause for a continuance.

We also agree with the trial court that Tarbutton's request to revoke his right to self-representation was untimely, given that the jury had reached its verdicts nearly two years earlier and the court was just about to impose Tarbutton's long-delayed sentence. Further, Tarbutton's request was in the form of an ultimatum: "unless I get a continuance, I do invoke that right, your honor." In short, Tarbutton's ultimatum was not an unequivocal request revoke his self-represented status and to reappoint counsel. (See People v. Lawrence, supra, 46 Cal.4th 186, 193 [defendant's claim that "he was having trouble with 'cross-examination,' did not amount to an unequivocal request to revoke his in propria persona status"].)

Thus, we find the trial court did not abuse its discretion when it denied Tarbutton's motion to continue and/or to reappoint counsel. D. Large Takings Enhancement

Tarbutton argues the repeal of the large takings enhancement applies to him retroactively because his case is not yet final on appeal. We disagree.

Former section 12022.6, subdivision (a)(4), provided: "If the loss exceeds . . . ($3,200,000), the court, in addition and consecutive to the punishment prescribed for the felony . . . of which the defendant has been convicted, shall impose an additional term of four years." (Stats. 2010, ch. 711, § 5.)

On January 1, 2018, former section 12022.6 was repealed by way of a sunset clause: "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." (Former § 12022.6, subd. (f).) The Legislature did not enact a new statute or extend the existing statute.

Generally, the California Supreme Court has held when the Legislature amends a statute to lessen the punishment: "The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (In re Estrada (1965) 63 Cal.2d 740, 745, 747 (Estrada).) "'The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.'" (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.)

However, the Estrada rule does not apply when a statute is repealed by operation of law through a sunset clause. (In re Pedro T. (1994) 8 Cal.4th 1041 (Pedro T.).) In Pedro T., the juvenile court imposed an enhanced punishment for a vehicle theft that occurred during the statute's effective period; however, the statute contained a three- year sunset clause, which expired while the case was on appeal. (Id. at p. 1044.) The court held in light of the sunset clause, the Legislature affirmatively intended the juvenile's enhanced punishment to apply throughout the section's effective period: "We believe the very nature of a sunset clause . . . , 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." (Id at pp. 1048-1049.)

In Pedro T., the Supreme Court explained how a contrary interpretation would lead to absurd results: "a rule that retroactively lessened the sentence imposed on an offender pursuant to a sunset clause would provide a motive for delay and manipulation in criminal proceedings. When the Legislature signals, years in advance, its intention to reduce the punishment for an offense, defendant and counsel have a strong incentive to delay the finality of a judgment in the hope of eventually receiving the lessened, postsunset term." (Pedro T., supra, 8 Cal.4th at pp. 1046-1047.)

Here, the trial court imposed a four-year enhancement for crimes Tarbutton committed during the effective period of former section 12022.6, subdivision (a)(4). Applying the holding in Pedro T.—as we must—we find Tarbutton is not entitled to retroactive application because the former statute was repealed by a sunset provision. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Tarbutton argues People v. Nasalga (1996) 12 Cal.4th 784, compels a different result. We disagree. In Nasalga, the Supreme Court applied the reasoning of Estrada to conclude that a 1992 amendment to former section 12022.6, subdivisions (a) and (b), which increased the amount of loss required for the sentence enhancement, applied retroactively to the defendant's sentence because the case was not yet final on appeal. (Nasalga, at pp. 797-798.) Nasalga is inapposite because the sunset provision in former section 12022.6, subdivision (f), was not at issue in that case.

Again, the sunset provision reflects the Legislature's intent that the large takings enhancement was to apply to crimes committed prior to January 1, 2018. This holding is in accordance with other recent opinions addressing the same identical issue. (See accord, People v. Abrahamian (2020) 45 Cal.App.5th 314, 336-338 [large takings enhancement applied to defendant even though enhancement was later repealed by sunset clause]; People v. Medeiros (2020) 46 Cal.App.5th 1142, 1149-1150 [same].) Thus, we find no retroactive effect.

III

DISPOSITION

The judgment is affirmed.

MOORE, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.


Summaries of

People v. Tarbutton

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jun 4, 2020
G055717 (Cal. Ct. App. Jun. 4, 2020)
Case details for

People v. Tarbutton

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. THOMAS FRANKLIN TARBUTTON…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jun 4, 2020

Citations

G055717 (Cal. Ct. App. Jun. 4, 2020)