Filed 9/18/13 P. v. Ayyad
CA2/6
NOT TO BE PUBLISHED
IN THE 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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
EZZAT
AYYAD,
Defendant and Appellant.
2d Crim. No. B245507
(Super. Ct. No. 2009017255)
(Ventura County)
The
trial court, sitting without a jury, found Ezzat Ayyad guilty of one count of
housing authority. (Pen. Code,
§ 487i.)
title="">[1] The trial court also found true the special
allegation that the taking was in excess of $50,000. (§ 12022.6.) We affirm.
FACTS
The
Ventura County Housing Authority (Housing Authority) administers Department of
Housing and Urban Development (HUD) rent subsidies for low income
families. HUD provides regulations for
the subsidies.
The
amount of the subsidy is determined by the family's composition and all family
income. The client must report all
changes to family, composition, income or assets within 10 days. The head of household has to live in the home
full time. If the head of household is
out of the home for more than 14 days, he or she must notify the Housing
Authority in writing; if more than 30 days the Housing Authority must authorize
the absence. If someone is staying at
the house two or three days a week, it should be reported. If a head of household wanted to live 50
percent of the time in Egypt
and 50 percent of the time in the United States,
it would not be permitted. Depending on
the severity of the omissions or misinformation, a person could be terminated
from the housing program.
Emtethal
Harmina applied for rent subsidy voucher.
Because of language and other difficulties, the Housing Authority
asked Harmina to execute a power of attorney so someone could act on her
behalf. Harmina appointed Ayyad as her
attorney-in-fact.
Ayyad
filled out Harmina's original application on August 13, 2002, and an annual recertification for the
subsidy from 2003 to 2007. The
applications showed that Harmina, Ayyad, and Sarah, Ayyad's daughter and
Harmina's granddaughter, were the only persons living in the house. Ayyad disclosed only one checking account
with a balance of between $300 to $400.
From
2002 to 2007, Ayyad failed to disclose:
that Harmina was living in Egypt
at least 50 percent of the time; that Ayyad's ex-wife, Hanan Botros, was living
in the home; that Botros had a substantial income; and that Ayyad was earning
rental income. In addition, Ayyad did
not disclose on recertification forms that he had a Canadian bank account and
that he held securities.
The
parties stipulated that Botros earned income as an office manager for a doctor
as follows: in 2002 she earned $66,000;
in 2003 she earned $93,479.50; in 2004 she earned $100,840; in 2005 she earned
$107,322; in 2006 she earned $107,890.
Botros testified in 2007 she earned $5,800 biweekly.
Shirley
Bumpus, a Housing Authority fraud investigator, testified that if she had
discovered that Botros was living with Ayyad and that Harmina was living in Egypt,
the account would have been terminated.
If Botros earned the stipulated salaries between 2003 and 2007, the
account would have been terminated. The
$66,000 Botros earned in 2002 might have disqualified them.
On
April 17, 2007, a Housing
Authority investigator interviewed Ayyad's daughter, Sarah, at her home. He interviewed her again a few days later at
her school. Sarah was nine years old at
the time. Sarah told the investigator
that she lived with her mother and father her whole life. She said Harmina did not live with them. She was not sure how long Harmina had lived
in Egypt, but she thought it was her whole life. She said Harmina had been visiting them for
about two weeks and she thought Harmina had last visited about five years ago.
Special
agent David Wales with Homeland Security performed a computerized search of
Harmina's travel history from 2002 to 2007.
The records show Harmina left the United States on November 23, 2002,
and returned in January 2006. She left
again in February 2006 and returned on March 28, 2007.
Ayyad's
sister-in-law told a Housing Authority investigator that between 2000 and 2005
Harmina lived with Ayyad about 50 percent of the time.
A
search warrant executed at the residence in April 2007 found evidence that
Botros lived there. The evidence
included financial papers, clothing, and toiletries. Investigators also found numerous documents
showing Ayyad lived there. Investigators
discovered only two beds in the residence.
Sarah slept in one and someone slept with Ayyad in the master bedroom. When an investigator asked Botros about
sleeping with Ayyad in the same bed she said, "[t]hat doesn't mean anything." Investigators found Harmina lying on a couch
in the family room. A suitcase filled
with clothes was right next to her.
Bumpus
testified that the total housing benefits extended to Harmina from May 2003
through May 2007 was $62,662.59. The total
received for the year beginning June 1, 2006, and ending May 31, 2007, was
$16,880.
DISCUSSION
I.
Ayyad
contends the one-year sentence enhancement imposed pursuant to section 12022.6,
subdivision (a)(1) is not supported by substantial
evidence.
At
the time Ayyad was sentenced, section 12022.6, subdivision (a)(1) provided for
a one-year sentence enhancement if the loss from taking property in the
commission of a felony exceeds $50,000.
obligated to pay had the fraud not occurred is not included in calculating the
$50,000. (People v. Crow (1993) 6 Cal.4th 952, 961-962.)
In
reviewing the sufficiency of the evidence we view the evidence in a light most
favorable to the judgment. (
578.) We discard evidence that does not
support the judgment as having been rejected by the trier of fact for lack of
sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the
evidence or judge the credibility of witnesses.
(People v. Stewart (2000) 77
Cal.App.4th 785, 790.) We must affirm if
we determine that any rational trier of fact could find the elements of the
crime or enhancement beyond a reasonable doubt.
(People v. Johnson,
Bumpus
testified that the total amount of benefits extended from May 2003 through May
2007 was $62,662.59. Of that amount,
$16,880 was extended from June 1, 2006 to May 31, 2007. Bumpus also testified that if Ayyad had
disclosed how much Botros was making between 2003 and 2007, the account would
have been terminated.
Ayyad
points out that the parties stipulated to Botros's salary only through
2006. He argues we must deduct the
$16,880 paid in 2007 for lack of evidence as to what Botros was paid that
year. It is true the stipulation only
went through 2006. But Botros testified
in 2007 she earned $5,800 biweekly as an officer manager, more than she made in
any other year. That is sufficient
evidence to support the trial court's finding that Ayyad fraudulently obtained
the entire $62,662.59.
Ayyad
argues there is no substantial evidence Harmina was not living in the house in
2007. But the trial court could
reasonably conclude from Bumpus's testimony that Botros's income alone would
have terminated the account. Thus
evidence that Harmina was not living in the house was not necessary.
In
any event, Homeland Security records show that between February 23, 2002, and
March 28, 2007, Harmina was in the United States for less than one month. In April 2007, when investigators searched
the house, they found Harmina lying on a couch with her suitcase nearby. Investigators found only two beds in the
house, one for Sarah and one for Ayyad and Botros. Sarah told an investigator that Harmina did
not live with them, she just visited. A
reasonable trier of fact could conclude Harmina was never anything more than a
temporary visitor to the house.
II.
Ayyad
contends the sentencing enhancement is unauthorized because the aggregate loss
did not arise from a common scheme or plan.
Section
12022.6, subdivision (b) allows the amount of the losses to be aggregated only
where the amount "arise from a common scheme or plan." Here all the money was taken from the same
victim, the Housing Authority, by the same method, false statements made in
voucher applications, and for the same purpose, to obtain housing
vouchers. That is more than ample
evidence to support the trial court's finding of a common scheme or plan.
Ayyad's
reliance on People v. Bailey (1961)
55 Cal.2d 514, is misplaced. There, the
defendant was charged with theft of county welfare funds under false
pretences. He received a total of
$3,064, in installments of less than $200 each.
The court instructed the jury:
"[I]f several acts of taking are done pursuant to an initial design
to obtain from the owner property having a value exceeding $200 and if the
value of the property taken exceeds $200, there is one crime of grand theft,
but that if there is no such initial design, the taking of any property having
a value not exceeding $200 is petty theft." (Id. at
p. 518.) The jury found the defendant
guilty of grand theft. Our Supreme Court
determined the jury was properly instructed, and reversed the trial court's
grant of a new trial.
Here
the trial court could reasonably conclude Ayyad's initial plan was to take as
much as he could get. He did not stop on
his own; he only stopped when he got caught.
Thus Ayyad's initial plan encompassed the entire $62,662.59. If anything, Bailey supports the trial court's determination here that the
amounts received by Ayyad should be aggregated.
Ayyad's
reliance on People v. Sanford (1940)
16 Cal.2d 247, and People v. Rabe (1927)
202 Cal. 409, is also misplaced. In both
cases our Supreme Court upheld the trier of fact's finding that multiple acts
of theft were separate and thus supported multiple convictions.
Here,
as in the cases relied on by Ayyad, we affirm the trier of fact's
determination, as supported by substantial
evidence.
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
GILBERT,
P. J.
We concur:
YEGAN,
J.
PERREN,
J.
Bruce A. Young,
Judge
Superior Court
County of Ventura
______________________________
William
Paul Melcher, 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, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Pamela C. Hamanaka, Deputy Attorney
General, for Plaintiff and Respondent.
name="_ftn1" title=""> [1]
All statutory
references are to the Penal Code unless otherwise stated.
increased to $65,000. The amendment is
not retroactive. (Stats. 2007, ch. 420,
§§ 1 & 2.)
