California Court of Appeals, Second District, Fourth Division
APPEAL fro a judgment of the Superior Court of Los Angeles County No. GA079423, Candace Beason, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jeffrey Allen Whitmer challenges his convictions on 20 counts of grand theft and 20 counts of making false financial statements. He contends he was unlawfully convicted of grand theft and making false financial statements; in addition, he maintains that his judgment of conviction must be reversed due to insufficiency of the evidence, instructional error, sentencing error, and ineffective assistance of counsel.
In our original opinion (People v. Whitmer[*] (2013) 213 Cal.App.4th 122, review granted May 1, 2013, S208843), we determined that appellant had shown reversible error only with respect to certain counts of making false financial statements. In rejecting appellant’s other contentions, we concluded that under People v. Bailey (1961) 55 Cal.2d 514 [11 Cal.Rptr. 543, 360 P.2d 39] (Bailey), a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of grand theft committed pursuant to a single scheme. Because other appellate courts had adopted a contrary interpretation of Bailey, we urged the Supreme Court to clarify the holding in Bailey.
After granting appellant’s petition for review, the Supreme Court limited its review to our determination regarding Bailey. In People v. Whitmer (2014) 59 Cal.4th 733, 735 [174 Cal.Rptr.3d 594, 329 P.3d 154] (Whitmer), the Supreme Court agreed with our conclusion that under Bailey, “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.” The court nonetheless determined that its holding could not be applied to appellant, due to prior appellate decisions that had “reached a conclusion contrary to ours....” (Id. at p. 742.) Finding appellant entitled to the benefit of the law as previously construed, the court held that he could be convicted of only one count of grand theft. (Ibid.)
Following remand of the matter, we have examined appellant’s remaining contentions in light of Whitmer. We conclude that grand theft of an automobile does not encompass the theft of motorcycles and motorized dirt bikes, but determine that appellant suffered no prejudice from the charging of grand theft of an automobile based on the taking of motorcycles, motorized dirt bikes, and related vehicles. We further conclude that appellant has shown reversible error only with respect to 14 counts of making false financial statements. We therefore reverse his convictions under those counts, as well as all but one of his convictions for grand theft, and remand the matter for resentencing.
RELEVANT PROCEDURAL BACKGROUND
On July 20, 2010, an information was filed, charging appellant with 21 counts of grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)), seven counts of making false financial statements (Pen. Code, § 532a), and 14 counts of theft of access cards or account information (Pen. Code, § 484e, subd. (d)). Accompanying the charges was an allegation that appellant took, damaged, or destroyed property valued at more than $200, 000 (§ 12022.6). Appellant pleaded not guilty and denied the special allegation.
At the prosecutor’s request, the trial court dismissed one count of grand theft of an automobile and one count of making false financial statements. After the presentation of evidence at the jury trial, the trial court amended the information to replace the charges of theft of access cards or account information (§ 484e, subd. (d)) with charges of making false financial statements (§ 532a). The jury found appellant guilty on all counts, as amended, and found the special allegation to be true. The trial court sentenced appellant to a total term of imprisonment of 12 years. In imposing the sentence, the court stayed punishment under all the counts of making false financial statements (§ 654).
A. Prosecution Evidence
The prosecution submitted evidence that appellant, while acting as manager for a motorcycle dealership, arranged for the fraudulent sale of 20 motorcycles, motorized dirt bikes, all terrain vehicles (ATVs), and similar recreational vehicles. In collaboration with Mordichi Mor, appellant arranged fraudulent sales to fictitious buyers, using falsified financing agreements and credit purchases, resulting in monetary losses to the dealership.
Jerome Gilding owned Temple City Power Sports, a business located in San Gabriel that sold and serviced motorcycles, motorized dirt bikes, ATVs, and jet skis. Because Gilding devoted most of his time to dealerships he owned in Temecula and other locations, he employed a sales manager to
operate the dealership, maintain its inventory, and supervise the sales staff, including employees in its finance department.
Customers of the dealership negotiated purchases with salespersons. The dealership made sales to customers who entered into financing agreements or paid with credit cards. In such cases, after the salesperson reached an agreement with the customer regarding an item and the manner of payment, the transaction was referred to the sales manager for approval. If approved, the transaction was sent to the dealership finance department, which collected the information necessary to process the financing agreement or credit card sale. When the dealership sold an item to a customer who failed to make the loan payments or used a bad credit card, the dealership incurred a “charge back, ” that is, took responsibility for the loss on the transaction. According to Gilding, to prevent charge backs, the dealership’s policy was to require customers to make purchases in person and to present two forms of identification.
Ordinarily, when credit card purchases were made, the card was swiped through a credit card machine, which instantaneously sent information regarding the purchase to the pertinent bank. An approval or denial was received from the bank within a few seconds. In contrast, if the machine was set for an “offline” or “forced” sale, the machine recorded the transaction but sent no information to the bank. As a result, no immediate credit approval or denial was generated; instead, information regarding the transaction was transmitted to the bank at the end of the business day. Gilding did not permit offline sales.
Associated with each vehicle sold by the dealership is a document known as the “manufacturer certificate of origin” (MSO). The vehicle’s original MSO can be used to establish title to the vehicle in other states and countries. The dealership retained the original MSO after a sale unless the vehicle was sold to an out-of-state purchaser or transferred to another dealer. The dealership had contractual obligations to several manufacturers not to sell vehicles for exportation outside the United States.
In 2009, appellant was the dealership’s sales manager, and Alex Barrera was employed as a salesperson. Eric Van Hek worked in the financial department until August or September 2009, when he was replaced by Richard Carlos. In late August or early September 2009, Gilding told appellant not to deal with Mordichi Mor, who had engaged in a fraudulent transaction at the dealership in 2008.
Carlos testified that he was a finance manager at the dealership for six to eight months. He had little prior experience with financial operations. According to Carlos, appellant ran the dealership and directed his activities. In the fall of 2009, Carlos often saw a person he knew as “Mordichi” talking to appellant in the dealership. After meeting with Mordichi, appellant directed Carlos to process sales transactions involving customers Carlos had never met, contrary to the dealership’s policy. Whenever the transaction involved a credit card, appellant told Carlos to process it as an offline sale. Carlos prepared the paperwork for each transaction and gave it to appellant, who returned the documents with the customer’s signature to Carlos. Carlos heard appellant direct other employees to deliver the purchased vehicles to Mordichi’s home and obtain the customers’ signatures there.
In December 2009, when Carlos received phone calls from banks attempting to locate the customers, he brought the calls to the attention of appellant, who said he would take care of them. After a fraud inquiry began, Carlos overheard appellant suggest to investigating police officers that appellant did not know Mor’s full name. Later, Carlos saw appellant shredding some documents. Appellant directed Carlos not to place the shredded documents in the dealership’s dumpster, but to dispose of them elsewhere.
Angela Wilcox, a dealership employee, testified that during the fall of 2009, she saw appellant with Mor many times in the dealership. At appellant’s request, she gave appellant original MSOs from the dealership’s files related to deals appellant arranged with Mor. Later, she overheard appellant tell police officers that he was unsure of Mor’s name, even though Mor was a well known customer whose name and address were in the dealership’s computer system. ...