P. v. Cannon CA2/8

Filed 9/1/26 P. v. Cannon CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B339957

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA496302)
v.

CURTIS PAUL CANNON,

Defendant and Appellant.

APPEAL from judgment of the Superior Court of
Los Angeles County, Terry A. Bork, Judge. Affirmed.
Richards Carrington and George B. Newhouse, Jr., for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
A jury convicted defendant Curtis Paul Cannon of two
counts of felony perjury, one count of felony misappropriating
public funds, and one count of felony grand theft by
embezzlement of public funds. On appeal, Cannon argues:
(1) insufficient evidence supports the jury’s findings that the
money at issue in his misappropriation and embezzlement
convictions qualified as public funds; (2) the trial court erred
when it instructed the jury on the definition of public funds;
(3) the court abused its discretion when it admitted evidence in
violation of his attorney-client privilege; (4) the People were
required to charge one of his counts of perjury as a misdemeanor
under the rule announced in In re Williamson (1954) 43 Cal.2d
651 (Willamson rule); and (5) insufficient evidence supports the
jury’s findings that he acted with the intent to deceive for
purposes of his perjury convictions. We reject each of Cannon’s
arguments and affirm.
FACTUAL BACKGROUND
1. Evidence related to the misappropriation and
embezzlement counts
1.1. Aero’s cooperative agreement with NASA
In 2006, the Aerospace Education Research and Operations
Institute (Aero) was formed as a nonprofit corporation in
Palmdale. Aero later entered into a cooperative agreement with
NASA (Cooperative Agreement), through which NASA agreed to
provide Aero funding for, among other things, science outreach
programs for schools, universities, and other educational
institutions. NASA was Aero’s sole source of funding.
Under the Cooperative Agreement, Aero received funding
from NASA on a per project basis. Each month, Aero would

2
withdraw money from an account that was funded by NASA and
managed by the United States Department of Health and Human
Services (HHS). Aero was supposed to use the money it withdrew
from that account to pay the direct costs of projects it ran under
the Cooperative Agreement. That money also covered Aero’s
indirect costs, including the costs of the organization’s day-to-day
operations, such as overhead costs and employees’ salaries and
benefits. If Aero withdrew more funds than a project ultimately
required, the organization was supposed to seek NASA’s
permission before redirecting the excess funds to a different
program.
The Cooperative Agreement required Aero to produce
quarterly and annual financial reports and send copies of the
reports to NASA. For the quarterly reports, Aero was required to
include “current estimates of the cash requirements for each of
the four quarters following the quarter being reported.” For the
annual reports, Aero was required to “document the disposition”
of funds distributed to the organization under the Cooperative
Agreement during the previous fiscal year and provide a
“narrative report” summarizing “accomplishments to the goals
outlined.”
The Cooperative Agreement also stated that expenditures
under the agreement were “subject to inspection and audit by
representatives of the Federal government during the period of
the agreement and three … years thereafter.” Aero was required
to maintain records “in sufficient detail to evidence details [of]
prudent management and to facilitate the preparation of the
required reports for determining whether expenditures are being
made for the purposes for which the funds were granted.”

3
NASA’s “Grant and Cooperative Agreement Manual”
(Manual) outlines the “closeout process” for ending NASA’s
relationship with a contracting organization. Relevant here, the
Manual states that when closing out a cooperative agreement,
the contracting organization, such as Aero, must provide NASA
with all “applicable final reports” and return to NASA all
“unexpended funds.” Under the Manual’s guidelines, contracting
organizations must “promptly refund any balances of unobligated
cash that the Federal awarding agency or pass-through entity
paid in advance or paid and that are not authorized to be
retained by the recipient.”
NASA’s cooperative agreements, including the one in this
case, are governed by provisions of the Code of Federal
Regulations. For instance, one applicable provision of the federal
regulations requires a contracting organization’s costs under a
cooperative agreement to be “necessary and reasonable for the
performance of the Federal award and be allocable thereto under
these principles.” (2 C.F.R. § 200.403(a) (2024).) Another
applicable provision provides that if a contracting organization
intends to use funds provided by NASA for purposes unrelated to
an approved project, the organization must first obtain NASA’s
approval for that unrelated use. (2 CFR § 200.308(b) (2024).)
Specifically, that provision states that recipients “are required to
report deviations from budget or project scope or objective, and
request prior approvals from Federal awarding agencies for
budget and program plan revisions.” (Ibid.) Another applicable
provision states, in relevant part, that “[a]ny funds paid to the
non-Federal entity in excess of the amount to which the non-
Federal entity is finally determined to be entitled under the

4
terms of the Federal award constitute a debt to the Federal
Government.” (2 CFR § 200.346(a) (2024).)
Throughout its relationship with NASA, Aero maintained a
surplus of funds in its own bank accounts. Those surplus funds
consisted of money that Aero over drafted from the HHS account
that NASA funded—i.e., money that was left over after Aero paid
its direct project costs and its indirect operating costs under the
Cooperative Agreement. NASA did not have access to, or control
over, Aero’s bank accounts.
1.2. Alleged misuse of funds held in Aero’s bank
accounts
In the summer of 2017, Cannon was appointed as Aero’s
executive director, around the same time that the organization’s
former executive directors, Kimberly Shaw and Susan Miller,
were charged with crimes stemming from alleged financial
misconduct that they committed while working for Aero.
In early October 2017, Shaw’s attorney sent Cannon a
letter asking Aero to indemnify Shaw’s defense in her criminal
case. The attorney claimed that Aero was required to indemnify
Shaw because she was an agent for the organization “at all times
relevant to the criminal complaint, acted at all times in good faith
and in a manner reasonabl[y] believed to be in the best interests
of [Aero], and had no reasonable cause to believe that any of her
conduct was unlawful.”
According to Aero’s bylaws, the organization’s board of
directors needed to approve any indemnification request made by
its employees or officers. Around late October 2017, Cannon
authorized Aero to indemnify Shaw’s defense. When Cannon
made that decision, Aero had at least one other voting board
member. Cannon did not consult with that board member (or any

5
others) before he authorized Aero to indemnify Shaw. Aero paid
Shaw and her lawyers over $200,000.
Around the same time that Cannon decided to indemnify
Shaw, he and Amber Abel, Aero’s business manager, opened a
new bank account in Aero’s name through Merrill Lynch.
Cannon and Abel transferred over $2 million from Aero’s other
bank accounts to the Merrill Lynch account. Cannon did not
obtain approval from Aero’s board of directors before doing so.
In late 2017, Cannon paid himself and Abel $25,000
bonuses. In early 2018, his last month working for Aero, Cannon
paid himself a severance package worth over $60,000. Cannon
did not obtain approval from Aero’s board of directors before
issuing any of those payments.
The Cooperative Agreement expired around March 2018.
Aero had over $2 million in its bank accounts at that time.
Shortly before the Cooperative Agreement terminated, one of
NASA’s procurement officers sent a letter to Aero, asking the
organization to return “all unused funds” that it had withdrawn
under the Cooperative Agreement “in accordance with 2 CFR
§200.345.”
Around August 2018, the trial court in Shaw’s criminal
case issued a temporary restraining order freezing Aero’s bank
accounts.
In May 2019, one of NASA’s contract officers sent a demand
letter to Aero. The letter stated that NASA was aware that Aero
was being investigated “regarding irregularities with the
expenditure of federal funds” and that the trial court in Shaw’s
criminal case froze Aero’s bank accounts. The letter also stated
that Aero owed the federal government over $3 million “in cost
disallowances” that were incurred under the Cooperative

6
Agreement. The letter asked Aero to repay NASA that amount
within 90 days.
Later that month, one of Aero’s attorneys responded to
NASA’s demand letter. Aero’s attorney argued that Aero owned
the funds at issue in NASA’s demand letter. Aero’s attorney
asked NASA whether it took the position that it owned the
surplus funds that Aero held in its own bank accounts.
In July 2019, NASA responded to the letter from Aero’s
attorney. NASA stated that it believed its initial demand letter
adequately responded to the attorney’s questions, and it stated
that it “did not take a position on ownership of the particular
funds under [the court’s] temporary restraining order.”
2. Evidence related to the perjury counts
2.1. Cannon’s sworn declarations filed in court
In February 2019, Cannon filed a sworn declaration in
Shaw’s case, through which he sought to lift the restraining order
freezing Aero’s bank accounts. Cannon testified that he was
aware that the prosecution was “concern[ed] that [Aero’s]
agreement to indemnify Ms. Shaw was not ratified by [Aero’s]
board.” Cannon claimed that he “was authorized to make [that]
decision [himself], as there were no other Board members at the
time.”
In December 2020, Cannon filed another sworn declaration
in Shaw’s case. Cannon stated that he received a letter from
Shaw’s defense attorney requesting that Aero indemnify Shaw for
the cost of her criminal defense. Cannon claimed, “After
receiving this letter I consulted with Karl Berger, who was
[Aero’s] attorney at the time. As a result of this consultation,
I determined that [Aero] had a legal obligation to indemnify
Ms. Shaw for the cost of her defense.” Cannon also declared,

7
“I wish to stress that I did not agree that [Aero] pay Ms. Shaw’s
fees because of some secret arrangement, or because she was still
secretly in control of [Aero] or its funds, or anything else like
that. Rather, [Aero] agreed to (partially) indemnify Ms. Shaw
because I believed in good faith that [Aero] had a legal obligation
to do so.”
2.2. Cannon’s financial declarations
In 2017, Aero paid Cannon over $130,000 in compensation,
including a salary of about $90,000, nearly $22,000 in “1099
income,” and the $25,000 bonus. In 2018, Cannon received
nearly $69,000 of income from Aero, including the more-than
$60,000 severance package.
In late February 2018, Cannon began working for the City
of Palmdale as the city’s economic development manager. In that
role, Cannon oversaw Palmdale’s contracts with Aero, including
Aero’s contract to lease space on city property.
When Cannon was hired by Palmdale, the city maintained
a conflict-of-interest policy that applied to its government
officials, including its economic development manager. Under
that policy, Cannon was required to regularly file sworn
statements disclosing his reportable financial interests, including
any income he received “from persons and business entities
having an interest in real property in the jurisdiction.” Palmdale
provided each new government official with a copy of an
instruction manual explaining how to disclose reportable
financial interests when assuming, maintaining, and leaving
office.
Around the time he started working for Palmdale, Cannon
filed a Form 700 “assuming office statement,” which required him
to report “investments, interests in real property, and business

8
positions” held on the date he assumed office, plus any income,
including loans, gifts, and travel payments, that he received in
the 12 months before he assumed his position with the city.
Cannon checked a box on the form stating that he had no
reportable financial interests, including any income that he
received during the 12 months before he started working for
Palmdale.
In February 2019, Cannon filed a Form 700 “annual
statement,” in which he was required to disclose any reportable
financial interests from the previous calendar year. Cannon
checked a box stating that he had no reportable financial
interests for the period between early January and late December
2018.
In December 2019, Cannon filed a Form 700 “leaving office
statement.” Cannon stated that he was leaving his position as
Palmdale’s economic development manager in early January
2020. Cannon checked a box on that form stating that he had no
reportable financial interests from early January 2019 through
early January 2020.
Shortly after Cannon resigned as Palmdale’s economic
development manager, a deputy city attorney for Palmdale began
investigating Aero. During that investigation, the attorney
discovered one of Aero’s tax forms, which showed Cannon
received around $90,000 in salary from Aero in 2017. The
attorney reported Cannon to the Fair Political Practices
Commission (FPPC) because Cannon had failed to disclose his
2017 salary from Aero on his Form 700 when he started working
for Palmdale in early 2018.
On April 2, 2020, the FPPC sent Cannon a letter notifying
him that someone had filed a complaint alleging that he violated

9
the “Political Reform Act’s economic interests disclosure
provisions” (fn. omitted) by failing to disclose the income he
received from Aero in 2017 when he assumed office with the City
of Palmdale.
On April 6, 2020, Cannon sent an e-mail to the FPPC,
where he acknowledged that he failed to disclose his 2017 salary
from Aero in the Form 700 that he filed when he assumed office
as Palmdale’s economic development manager. Cannon claimed
that he failed to disclose his salary because he misunderstood the
requirements for filing a Form 700 when he started working for
the city. Cannon believed that he was only required to disclose
income that he was receiving at the time he filed the form.
Cannon pointed out that several Palmdale officials were aware
that he worked for Aero when he applied for his position with the
City, and he claimed that he did not intend to deceive anyone by
omitting the income he received from Aero on his original
Form 700. Cannon did not, however, acknowledge that he
received nearly $69,000 of income from Aero in February 2018,
before he started working for Palmdale.
The same day that he contacted the FPPC, Cannon filed an
amended Form 700 for when he assumed office with Palmdale.
Cannon attached to that document a “Schedule C” form, on which
he reported that he received income from Aero during the 12-
month period before he began working for Palmdale. Cannon
checked a box on that form stating that he received between only
$10,000 and $100,000 of income from Aero during that period.
The FPPC and Cannon later reached a stipulated
disposition, through which the FPPC fined Cannon $100 for
failing to disclose on his Form 700 the income he received from
Aero in 2017.

10
PROCEDURAL BACKGROUND
The People charged Cannon with four counts of felony
perjury (Pen. Code, § 118;1 counts 1, 2, 6 & 7), three counts of
felony misappropriation of public funds (§ 424; counts 3–5), and
one count of felony grand theft of public funds by embezzlement
(§§ 504, 514; count 8). Counts 1, 2, and 6 alleged that Cannon
failed to accurately disclose his outside income on his Form 700’s
when he worked for the City of Palmdale. Count 7 alleged that
Cannon made false statements in a sworn declaration about
whether he was authorized to indemnify Shaw’s criminal defense.
Counts 3 through 5 alleged that Cannon misappropriated public
funds belonging to a federal agency when he authorized bonuses
and severance packages for himself and others, transferred over
$2 million from Aero’s existing bank accounts to a new bank
account, and authorized Aero to indemnify Shaw’s criminal
defense. Count 8 alleged that Cannon embezzled public funds
while he served as Aero’s board member and executive director.
A jury convicted Cannon of two counts of perjury (counts 2
& 7), one count of misappropriation of public funds (count 3), and
grand theft by embezzlement of public funds (count 8). The court
imposed a total sentence of four years and eight months in
prison. The court suspended execution of the sentence and placed
Cannon on two years of formal probation.
Cannon appeals.

1 All undesignated statutory references are to the Penal
Code.

11
DISCUSSION
1. Sufficiency of the evidence to support the jury’s
findings that the money at issue in counts 3 and 8
qualifies as public funds
Cannon first contends that insufficient evidence supports
the jury’s findings that he misappropriated and embezzled public
funds in counts 3 and 8, respectively. Cannon focuses only on
whether the People proved that the money he misappropriated or
embezzled belonged to a government or public agency. He does
not challenge the sufficiency of the evidence to support any other
element of his convictions in counts 3 and 8. As we explain,
substantial evidence supports the jury’s findings that the money
Cannon misappropriated and embezzled belonged to a
government agency.
1.1. Applicable law and standard of review
Section 424 makes it a crime to misappropriate public
funds. That statute states that anyone “charged with the receipt,
safekeeping, transfer, or disbursement of public moneys, who …
[¶] … [w]ithout authority of law, appropriates the same, or any
portion thereof, to his or her own use, or to the use of another” is
guilty of a felony and disqualified from holding any public office
in California. (§ 424, subd. (a)(1).) The phrase “public moneys,”
as used in section 424, includes “all bonds and evidence of
indebtedness, and all moneys belonging to the state, or any city,
county, town, district, or public agency therein, and all moneys,
bonds, and evidences of indebtedness received or held by state,
county, district, city, town, or public agency officers in their
official capacity.” (§ 426.)
“Embezzlement is the fraudulent appropriation of property
by a person to whom it has been [e]ntrusted.” (§ 503.) “Every

12
officer of this state, or of any county, city, city and county, or
other municipal corporation or subdivision thereof, and every
deputy, clerk, or servant of that officer, and every officer,
director, trustee, clerk, servant, or agent of any association,
society, or corporation (public or private), who fraudulently
appropriates to any use or purpose not in the due and lawful
execution of that person’s trust, any property in his or her
possession or under his or her control by virtue of that trust, or
secretes it with a fraudulent intent to appropriate it to that use
or purpose, is guilty of embezzlement.” (§ 504.) Under section
514, if the embezzlement is “of the public funds of the United
States, or of this state, or of any county or municipality within
this state, the offense is a felony, and is punishable by
imprisonment in the state prison; and the person so convicted is
ineligible thereafter to any office of honor, trust, or profit in this
state.” (Ibid.)
Section 514 does not define “public funds” for purposes of
felony embezzlement under sections 503 and 504. Cannon does
not contend that the definition of “public funds” under
section 514 differs from the definition of “public moneys” under
section 426 for purposes of his convictions in counts 3 and 8.
Indeed, he does not distinguish between those convictions in
arguing that insufficient evidence supports the jury’s findings
that he misappropriated and embezzled public funds. The People
also do not contend that the terms “public moneys” and “public
funds” have different meanings for purposes of Cannon’s
substantial evidence challenge to his convictions in counts 3 and
8. We therefore treat both terms as having the same meaning in
determining whether the People proved that Cannon
misappropriated and embezzled public funds. For ease of

13
reference, we hereafter use the term “public funds” to refer to the
terms “public moneys” as used in sections 424 and 426, and
“public funds” as used in section 514.
We review a jury’s findings supporting a conviction for
substantial evidence. We review the whole record in the light
most favorable to the judgment to determine whether it discloses
substantial evidence from which a reasonable jury could find the
defendant guilty beyond a reasonable doubt. (People v. Wilson
(2008) 44 Cal.4th 758, 806.) We make all inferences in support of
the judgment that the jury reasonably could have found from the
evidence. (Ibid.) We do not reweigh the evidence or reevaluate
the credibility of witnesses. (People v. Lindberg (2008) 45 Cal.4th
1, 27 (Lindberg).) “ ‘ “If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with
a contrary finding does not warrant a reversal of the
judgment.” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 508.)
1.2. Analysis
The money at issue in counts 3 and 8 is the surplus money
that Aero held in its bank accounts and which Cannon used to
pay $25,000 bonuses to himself and other Aero employees around
late 2017 and more than $60,000 as severance to himself around
early 2018. Aero received that money from NASA through the
Cooperative Agreement. That money is what was left over after
Aero paid the direct costs for projects that NASA approved under
the Cooperative Agreement as well as Aero’s indirect costs, such
as employee salaries and other operating costs.
Cannon contends that insufficient evidence supports the
jury’s findings that the money at issue constitutes public funds
because Aero had sole possession of, and access to, that money

14
and, as a result, owned it outright. Cannon points to the
following evidence to support his argument: (1) Aero had sole
access to the bank accounts in which the money was held;
(2) NASA had no oversight or control over Aero’s bank accounts;
(3) NASA never asserted ownership over the money in Aero’s
bank accounts; (4) Aero’s former business manager testified that
the money held in Aero’s bank accounts “belonged” to the
organization; and (5) the money was accounted for in Aero’s tax
forms and other financial statements. Cannon argues that
because the law generally presumes that those who possess
property are its owners (see, e.g., Evid. Code, § 637), these facts
compel a finding that the money at issue in this case belongs to
Aero and not NASA for purposes of his misappropriation and
embezzlement convictions.
The People, on the other hand, argue that traditional
indicators of property ownership are not the proper criteria for
determining whether money constitutes public funds under the
misappropriation and embezzlement statutes. Instead, the
People contend that we should follow People v. Johnson (2012)
209 Cal.App.4th 800 (Johnson), which looked at the way in which
money that a government or public agency gives to an outside
entity is received, monitored, and controlled to determine
whether that money continues to qualify as public funds once it
has been disbursed by the government or public agency. (See id.
at pp. 812–815.) We agree that Johnson is instructive here.
In Johnson, the defendants operated a children’s group
home licensed by California and funded by a mix of federal, state,
and local agencies. (Johnson, supra, 209 Cal.App.4th at pp. 803–
804.) The defendants were charged with, among other crimes,
misappropriating public money under section 424,

15
subdivision (a)(1), stemming from their operation of the group
home. (Johnson, at p. 806.) The trial court granted the
defendants’ motion to dismiss the misappropriation of public
funds charges, finding that because the defendants were not
employees, agents, or officers of a government agency, and
because their group home was not itself a government agency,
their misuse of any funds in operating their group home fell
outside the scope of section 424, subdivision (a). (Johnson, at
p. 807.)
The appellate court in Johnson reversed. (Johnson, supra,
209 Cal.App.4th at p. 815.) The court observed that the proper
criteria for determining whether money belongs to a government
or public agency and, therefore, constitutes public funds, is not
“ ‘[u]ltimate ownership’ ” of the money, but rather “ ‘[t]he official
character in which the money[] [is] received or held.” (Id. at
p. 809, quoting People v. Griffin (1959) 170 Cal.App.2d 358, 363
(Griffin).) The court found “persuasive the analysis and
reasoning” of federal decisions interpreting a federal theft of
government property statute. (Johnson, at p. 812.) Those cases
held that money belongs to the government, even after it is
disbursed to another entity, if the government “has ‘title to,
possession of, or control over’ the funds at issue. [Citations.] This
is so even when the funds are commingled with nonfederal funds,
as long as the government ‘ “exercises supervision and control
over the funds and their ultimate use.” ’ ” (Ibid., citing, among
others, U.S. v. Kranovich (9th Cir. 2005) 401 F.3d 1107, 1113;
U.S. v. Johnson (9th Cir. 1979) 596 F.2d 842, 846; U.S. v. Von
Stephens (9th Cir. 1985) 774 F.2d 1411, 1413.)
The court in Johnson concluded that the money transferred
to the defendants’ group home constituted public funds because

16
the disbursing government agency “retained an interest in, and
extensive control over, all of the” money, “both under state law
and state and federal regulations.” (Johnson, supra,
209 Cal.App.4th at p. 814.) For instance, the government agency
identified who the group home was required to give the money to
and limited the group home’s use of the money “to specified
allowable costs.” (Id. at pp. 814–815.) The agency also required
the group home “to provide independent financial audit reports
and maintain specific records.” (Id. at p. 815.) The group home
was required to give the government agency access to its program
records and could be subject to penalties for failing to comply.
(Ibid.) Any unspent money had “to be returned to the program or
the federal government,” and the government agency “actively
pursue[d] collection of overpayments.” (Ibid.) Although the
government agency had lacked funds to conduct group home
audits “for a number of years,” the court held that a lack of such
funds did not permit the defendants “to skirt the law.” (Ibid.)
Applying the reasoning in Johnson here, substantial
evidence supports the jury’s findings that the money that Cannon
misappropriated and embezzled qualifies as public funds. To be
sure, Aero retained the money it received from NASA in bank
accounts that Aero solely owned and operated. But as Johnson
makes clear, the fact that a government agency relinquishes
possession of the contested money does not, without more,
establish that the money no longer constitutes public funds. (See
Johnson, supra, 209 Cal.App.4th at pp. 810–815.) Rather, the
relevant factors also include the way the money is distributed,
monitored, and otherwise controlled by the government agency to
determine whether it still constitutes public funds. (See id. at
pp. 812–815.)

17
The People presented evidence to support a finding that
NASA retained sufficient oversight and control over the money at
issue in this case. It is undisputed that NASA was the sole
source of that money, and Aero’s receipt of that money was
regulated by the terms of the Cooperative Agreement and federal
regulations. For instance, Aero received money from NASA on a
project-by-project basis, and Aero was supposed to obtain NASA’s
approval before redirecting any excess or unused funds from an
approved project to a different project. Further, federal
regulations required Aero’s costs under the Cooperative
Agreement to be “necessary and reasonable for the performance
of the Federal award and be allocable thereto under these
principles.” (See 2 CFR § 200.403(a) (2024).)
The Cooperative Agreement also required Aero regularly to
account for the money that it received from NASA. Aero was
required to provide NASA with quarterly and annual financial
reports. For the annual reports, Aero had to “document the
disposition” of any funds it received from NASA and describe how
it was using those funds to accomplish the goals of the
Cooperative Agreement. The agreement also stated that Aero’s
use of the funds it received from NASA was subject to inspection
and audits by the federal government, and Aero was required to
maintain detailed financial records to enable the federal
government to “determin[e] whether expenditures are being
made for the purposes for which the funds were granted.”
As Johnson explained, this type of oversight by the government
agency supplying the contested money supports a finding that
such money constitutes public funds. (See Johnson, supra,
209 Cal.App.4th at pp. 813–815.)

18
In addition, NASA’s Grant and Cooperative Agreement
Manual placed restrictions on Aero’s right to maintain the money
it received from NASA at the termination of the Cooperative
Agreement. The manual states that when a cooperative
agreement ends, the contracting organization (i.e., Aero) must,
among other things, return to NASA all “unexpended funds”
disbursed under the agreement. Indeed, NASA asked Aero to
return “all unused funds” once the Cooperative Agreement ended.
All this evidence supports a finding that the money Aero
received from NASA, including the surplus funds that Aero
maintained in its own bank accounts, was money belonging to a
public agency. (See Johnson, supra, 209 Cal.App.4th at pp. 814–
815.) Cannon does not dispute that, as Aero’s executive director,
he was responsible for maintaining, safekeeping, and disbursing
that money. (See §§ 424, subd. (a)(1), 503, 504.) Accordingly,
substantial evidence supports the jury’s findings that Cannon
misappropriated and embezzled public funds.
2. Instructional error regarding the definition of public
funds for count 3
Cannon next contends that the trial court erred when it
instructed the jury on the elements of his conviction in count 3 for
misappropriating public funds. Specifically, Cannon argues that
the court provided several erroneous special instructions defining
public funds. As we explain, Cannon has not shown that the
court prejudicially erred when it instructed on the definition of
public funds.
2.1. Standard of review for instructional error claims
We review claims of instructional error de novo. (People v.
Mitchell (2019) 7 Cal.5th 561, 579.) We independently review the
instruction’s language and evaluate whether it accurately states

19
the law. (Ibid.) Considering the entire record and the
instructions as a whole, we must determine whether there is a
“reasonable likelihood” that the trial court’s instructions caused
the jury to misapply the law. (Ibid.)
2.2. Relevant background
Before trial, the People filed proposed jury instructions.
The People asked the trial court to give the portion of CALCRIM
No. 2765 corresponding to section 424, subdivision (a)(1).
The People also asked the court to give CALCRIM No. 2765’s
definition of “public money,” which is derived from section 426.
The People asked the trial court to add over 20 special
instructions to CALCRIM No. 2765, including an instruction
defining the term “ ‘without authority of law’ ” to include
“violations of ‘nonpenal’ laws and regulations,” instructions
identifying and explaining the laws governing nonprofit
corporations, and instructions explaining provisions of the Code
of Federal Regulations governing cooperative agreements
between a federal agency and a private organization, including
how funds provided by the federal agency must be managed.
The People also asked the trial court to give the following
special instructions explaining how to determine whether funds
belong to a public or government agency under sections 424 and
426: (1) “If the government, federal or state, maintains some
control over the use of the funds, then the funds are considered
‘public moneys’ ”; (2) “In determining whether funds are public
moneys, the proper criterion is the official character in which the
moneys are received or held”; and (3) “Ultimate ownership of the
funds is not a proper criterion in determining whether the funds
are public funds.”

20
Cannon objected to many of the People’s proposed
instructions. He argued that money held or owned by a federal
agency, such as NASA, did not qualify as “public moneys” under
section 426. Cannon also objected to the proposed instructions
explaining how to determine whether money constitutes public
funds, such as the proposed instruction that so long as the
government “maintains some control” over the use of the money,
that money constitutes public funds. Cannon argued that the
proposed instructions were irrelevant, claiming that they were
derived from federal cases defining public funds under federal
statutes, not from California cases defining public moneys under
sections 424 and 426. Cannon also argued that the proposed
instruction stating that ultimate ownership of the funds is not a
proper criterion for determining whether funds are public money
was contrary to California law.
Finally, Cannon objected to the proposed instructions
addressing rules and regulations governing the operation of
nonprofit corporations. Cannon did not dispute that many of
those instructions correctly stated the law. Rather, Cannon
argued that they likely would confuse the jury or were irrelevant
because none of the issues in the case concerned whether he
followed the rules and regulations governing nonprofit
corporations.
Relevant here, the trial court instructed the jury with the
following portion of CALCRIM No. 2765: “The defendant is
charged in Counts 3, 4 and 5 with misappropriating public money
in violation of Penal Code section 424(a)(1). [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶]
The defendant was responsible for receiving, safekeeping,
transferring or distributing public money; [¶] AND [¶] The

21
defendant, while responsible for receiving, safekeeping,
transferring or distributing public money: [¶] a. Took some of
that money for his own or someone else’s use without legal
authority; [¶] AND [¶] When the defendant did so, he knew that
he was not following the law on receiving, safekeeping,
transferring or distributing public money or was acting without
legal authority or was criminally negligent in failing to know the
legal requirements for or restrictions on his conduct.”
The trial court also gave CALCRIM No. 2765’s definition of
public money: “The term public money includes all funds, bonds,
and evidence of indebtedness received or held by state, county,
district, city, town, or public agency officers in their official
capacity. It also includes money received from selling bonds or
other evidence of indebtedness authorized by the legislative body
of any city, county, district, or public agency.”
The trial court gave the following special instructions:
(1) “In determining whether funds are public moneys[,] the
proper criterion is the official character in which the moneys are
received or held. Ultimate ownership is not a proper criterion”;
(2) “The term ‘without authority of law’ specifically includes
violations of ‘nonpenal’ laws and regulations”; and (3) “If the
government, federal or state, maintains some control over the use
of the funds, then the funds are considered public moneys.” The
court also gave several special instructions addressing the rules
and laws governing the operation of nonprofit corporations,
including an instruction stating that the “board of directors for a
non-profit corporation shall review and approve the
compensation, including benefits, of the president or chief
executive office[r].”

22
2.3. Analysis
Cannon first contends that the trial court erred by
instructing the jury that ultimate ownership is not a proper
criterion for determining when money disbursed by a government
agency and held by a nonprofit organization constitutes public
funds. According to Cannon, this instruction allowed the jury to
find that the money at issue in count 3 constituted public funds
so long as it belonged to NASA at some point in the past, even if
Aero owned that money outright when Cannon used it to pay
himself and other employees unauthorized bonuses and
severance packages. This argument lacks merit.
As other cases have explained, ultimate ownership of
money is not the proper criterion for determining whether it
constitutes public funds under sections 424 and 426. (See People
v. Crosby (1956) 141 Cal.App.2d 172, 175; Griffin, supra,
170 Cal.App.2d at p. 363; People v. Best (1959) 172 Cal.App.2d
692, 695–696; Johnson, supra, 209 Cal.App.4th at p. 809.)
Rather, the proper criterion for determining whether money
constitutes public funds is, as the court instructed the jury, the
manner in which the money is received or held. (Johnson, at
p. 809.) As the court in Johnson explained, when a government
agency relinquishes possession of money to another entity, that
money still constitutes public funds so long as the government
agency maintains supervision and control over it. (Id. at pp. 812–
815.) The trial court, therefore, did not err when it instructed the
jury that ultimate ownership of the contested money is not the
proper criterion for determining whether it constitutes public
funds.
Cannon next contends that the trial court erred when it
instructed the jury that money is considered public funds if the

23
government agency maintains “some control” over its use.
According to Cannon, this instruction was erroneous because it
did not define what level of government control over contested
money is necessary to establish that such money constitutes
public funds. In Cannon’s view, “the jury was invited to conclude
that even a de minimis level of control” was sufficient to establish
that the contested money constituted public funds. We need not
decide whether this instruction was erroneous. Assuming it was,
and assuming that error implicated Cannon’s federal due process
rights, it was harmless beyond a reasonable doubt. (See People v.
Hendrix (2022) 13 Cal.5th 933, 942 [harmless beyond a
reasonable doubt standard applies to instruction that “relieves
the prosecution of its burden to prove an element of the crime—
by either misdescribing the element or omitting it entirely”].)
As we discussed above, the People presented ample
evidence to support a finding that NASA retained sufficient
control and supervision over the money it gave to Aero, including
the surplus funds that Aero maintained in its own bank accounts,
to qualify as public funds under sections 424 and 426. The
prosecutor discussed these facts at length in arguing to the jury
why it should find that the money at issue constituted public
funds. Cannon did not dispute these facts at trial. Instead, he
argued an entirely different standard should be used to
determine whether the money at issue constituted public funds.
According to Cannon, the jury should have been asked to
determine who ultimately owned the money that Cannon used to
pay bonuses and severance packages to himself and other Aero
employees, including who had possession of, and access to, the
money at the time those payments were made. In light of the
parties’ arguments at trial and the strong evidence that NASA

24
retained sufficient supervision and control over the money at
issue, we are confident beyond a reasonable doubt that the jury
would not have found the money at issue constituted public funds
by concluding that NASA maintained only a “de minimis” or
otherwise insufficient level of control over it.
Cannon also argues that the trial court erroneously
instructed the jury that even if the money at issue in this case
was wholly owned by Aero, that money would still constitute
public funds if the People proved that Cannon failed to follow
“appropriate corporate formalities,” such as requiring the
approval of Aero’s board of directors, before using that money to
pay himself and others bonuses and severance packages. To
support this argument, Cannon points to several of the court’s
instructions addressing the rules and laws governing the
operation of nonprofit corporations. This argument is misguided.
To convict a defendant of misappropriating public funds
under section 424, subdivision (a)(1), the People must prove that
the defendant used the money at issue “[w]ithout authority of
law.” (See § 424, subd. (a)(1).) The court’s instructions
addressing the rules and laws governing the operation of
nonprofit corporations were, therefore, relevant to proving that
Cannon used the money at issue in this case without legal
authority, not to prove that the money constituted public funds.
Indeed, the court instructed the jury that the term “ ‘without
authority of law’ ” as used in section 424, subdivision (a)(1)
“includes violations of ‘nonpenal’ laws and regulations,” such as
the laws and regulations governing the operation of nonprofit
corporations. Nothing in the court’s instructions told the jury
that it could find the money at issue in this case constituted
public funds so long as it found that Cannon used that money

25
without legal authorization or in violation of the laws and
regulations governing the operation of nonprofit corporations.
Finally, in a parenthetical statement and two footnotes
included in his opening brief, Cannon notes that he objected to
the trial court’s instructions defining public funds for purposes of
sections 424 and 426 on the ground that money provided by a
federal agency cannot constitute public funds under those
statutes. In one of those footnotes, Cannon states that this
“position is renewed on appeal.”
In his opening brief, Cannon does not provide any legal
analysis to support this argument, nor does he cite any legal
authority to support it. In his reply brief, however, Cannon
devotes several pages of discussion to this argument. We decline
to consider this argument. Cannon has waived it by failing to
develop it in his opening brief (In re S.C. (2006) 138 Cal.App.4th
396, 408), and to the extent Cannon attempts to develop this
argument in his reply brief, that argument is untimely (City of
Palo Alto v. Public Employment Relations Bd. (2016)
5 Cal.App.5th 1271, 1318).
3. The trial court’s admission of statements covered by
the attorney-client privilege
Cannon next argues that the trial court abused its
discretion when it found he waived the attorney-client privilege
and admitted evidence of several of his communications with
Aero’s former attorney, Karl Berger. As we explain, the court
correctly found Cannon waived the attorney-client privilege for
evidence concerning one set of his communications with Berger.
To the extent the court erred in admitting evidence of the second
set of communications with Berger, any error was harmless.

26
3.1. Applicable law and standard of review
The attorney-client privilege protects confidential
communications between a client and his or her attorney made
during the attorney-client relationship. (Guardian Storage
Centers, LLC v. Simpson (2026) 119 Cal.App.5th 509, 522.) The
privilege confers on the client a right to refuse to disclose, and to
prevent another from disclosing, a confidential communication
between the client and the lawyer. (Ibid.; see Evid. Code, § 954.)
Once the proponent of the privilege makes a prima facie
showing of a confidential attorney-client communication, it is
presumed that the communication is privileged and the burden
shifts to the other party to establish waiver, an exception, or that
the privilege otherwise does not apply. (McDermott Will & Emery
LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1101
(McDermott).) The privilege may be waived by its holder. (Ibid.)
A waiver results when the holder, without coercion, discloses a
significant part of the communication or consents to the
communication’s disclosure by a third party. (Ibid.; see Evid.
Code, § 912.)
The holder of the attorney-client privilege may also waive
the privilege by placing the contents of the confidential
communication at issue in the case. (Mitchell v. Superior Court
(1984) 37 Cal.3d 591, 604.) Where privileged information “goes to
the heart” of the claim asserted by the party invoking the
privilege, “fundamental fairness requires that [the privileged
communication] be disclosed for the litigation to proceed.”
(Steiny & Co. v. California Electric Supply Co. (2000)
79 Cal.App.4th 285, 292.) For instance, “the deliberate injection
of the advice of counsel into a case waives the attorney-client
privilege as to communications and documents relating to the

27
advice.” (Transamerica Title Ins. Co. v. Superior Court (1987)
188 Cal.App.3d 1047, 1053 (Transamerica).)
We review a trial court’s determination about whether a
privilege applies for abuse of discretion. (Kirchmeyer v. Phillips
(2016) 245 Cal.App.4th 1394, 1402.) We review the trial court’s
factual findings supporting its determination for substantial
evidence. (McDermott, supra, 10 Cal.App.5th at p. 1102.)
3.2. Relevant background
In his December 2020 declaration, Cannon stated, among
other things, that he consulted with Berger after receiving the
letter from Shaw’s attorney asking Aero to indemnify her
defense. Cannon also stated that, based on his conversation with
Berger, he determined that Aero was legally obligated to
indemnify Shaw.
During his opening statement at trial in this case,
Cannon’s attorney addressed count 7, which charged Cannon
with falsely stating in a sworn declaration that he was
authorized to indemnify Shaw. Relevant here, defense counsel
stated, “by the way, the evidence will show there were attorneys
working for Aero at that point. And I can’t go into the
conversation that Mr. Cannon had with the requisite attorney
because it’s subject to attorney-client privilege, but I will tell you
the evidence will be clear that after consulting with that
attorney, Mr. Cannon said, to himself—.” The prosecutor
objected to defense counsel’s statement, which the trial court
overruled. Defense counsel continued to state that Cannon
believed he was authorized to indemnify Shaw because he
thought that he was Aero’s sole board member, and that Aero
was otherwise legally obligated to indemnify Shaw’s legal fees.
Even if Cannon was ultimately wrong in deciding to indemnify

28
Shaw, defense counsel argued, that decision was reasonable
because Cannon exercised “due diligence” before making that
decision.
During trial, the People sought to introduce Berger’s
testimony about whether Cannon sought his legal advice
concerning Cannon’s decision to indemnify Shaw. The prosecutor
argued that Cannon had waived the attorney-client privilege
with respect to his communications with Berger on that topic by
raising an “advice of counsel” defense during his opening
statement. The prosecutor pointed to defense counsel’s opening
statement, in which he suggested to the jury that Cannon
believed he was legally authorized to indemnify Shaw based on
his conversations with Berger.
Cannon objected to allowing Berger to testify about any
conversations they had about whether Aero should indemnify
Shaw, arguing those conversations were protected by the
attorney-client privilege. After conducting an in camera review of
Berger’s records and reviewing briefs submitted by both parties,
the trial court granted the People’s request to allow Berger to
testify.
The court found that although there was an attorney-client
relationship between Cannon and Berger, Cannon waived the
attorney-client privilege with respect to his conversations with
Berger concerning whether Aero should indemnify Shaw.
Specifically, the court found that by publicly filing a sworn
affidavit in which he claimed that he decided to indemnify Shaw
based on Berger’s legal advice, and by referencing that alleged
legal advice as a basis for his defense to count 7 during his
opening statement, Cannon placed the content of his conversation
with Berger at issue in this case.

29
Berger testified as part of the People’s case-in-chief. The
prosecutor asked Berger whether he found anything in his files
concerning his representation of Aero “related to the issue of
indemnification of Kim Shaw.” Berger responded, “I don’t believe
I found anything related to the indemnification of Kim Shaw.”
The prosecutor followed up, “To the best of your memory, did you
ever advise [Cannon] that he was legally obligated to indemnify
Ms. Kim Shaw in 2017 for Kim Shaw’s legal defense?” Berger
answered, “I have no recollection of that.”
Later, Berger confirmed that he received an e-mail from
Cannon in December 2017, which stated, “In order to keep the
item confidential, I would like to know if the legal fees for defense
of our employee, Kim Shaw, can be run through your office.
Maybe an escrow account. Let me know if this is something that
can be done.” Berger testified that he responded to Cannon’s
e-mail as follows, “Hi, [Cannon] … I’m not really sure what you’re
proposing … [My law firm] isn’t providing the defense to Ms.
Shaw and really isn’t involved with the matter at all. I think you
retained separate counsel. Please let me know your thoughts.”
Berger confirmed that Cannon sent a followup e-mail,
which stated: “Correct. What I’m asking is if I can run the
billing to Aero from Kim Shaw’s legal counsel through your firm.
We provide the funding, but I’m trying to keep it confidential
since she’s the only one of the three defendants I have agreed
Aero will defend. I didn’t necessarily want the other two to know
about it and assume we would pay for their defense as well.”
Berger responded to Cannon’s second e-mail, “I checked into this,
and I don’t think this will work out on our end. From a
malpractice standpoint, we would be responsible for the work
product of the other firm. From an ethics standpoint, we would

30
need to have an agreement with the other law firm. Perhaps the
law firm can set up an escrow account for you? Sorry about that.”
Berger also testified about Berger’s notes and a November
2017 e-mail that he sent to Cannon concerning a recent meeting
between them. The e-mail discussed, among other things,
Cannon’s request that Berger amend the minutes from one of
Aero’s board meetings to clarify that one of the board members
did not participate in the board’s decisions.
3.3. Analysis
Cannon first contends that the trial court erred when it
permitted Berger to testify about whether Cannon sought his
advice as to whether Aero was legally obligated to indemnify
Shaw’s defense. This argument lacks merit.
As we explained above, a client may waive the attorney-
client privilege by voluntarily disclosing a significant part of the
communication at issue. (Evid. Code, § 912; see also McDermott,
supra, 10 Cal.App.5th at p. 1101.) Here, Cannon publicly filed a
declaration in another lawsuit in which he stated that after
receiving a letter from Shaw’s attorney requesting that Aero
indemnify Shaw’s legal defense, Cannon “consulted with Karl
Berger” and, as a result of that consultation, “determined that
[Aero] had a legal obligation to indemnify [Shaw].” While
Cannon did not disclose the specific contents of his conversation
with Berger, he did voluntarily disclose the fact that he sought
legal advice from Berger about whether Aero was obligated to
indemnify Shaw and, based on that conversation, he concluded
that Aero was obligated to do so. Cannon’s declaration, therefore,
explicitly states that he consulted Berger and implies that he did
so to obtain advice about whether Aero was required to indemnify
Shaw. The declaration also clearly implies that Berger advised

31
Cannon that Aero was required to indemnify Shaw.
Consequently, Cannon waived any privilege he had in protecting
the fact that he sought legal advice from Berger, including
whether Berger advised him that Aero should indemnify Shaw.
In addition, during his opening statement, defense counsel
told the jury that the evidence would show that after Cannon
spoke to Aero’s attorney (i.e., Berger), Cannon concluded that
Aero was legally obligated to pay the legal fees for Shaw’s
criminal defense. Defense counsel stressed that regardless of
whether Cannon was ultimately correct in deciding to use Aero’s
funds to indemnify Shaw, Cannon acted in good faith because he
“did his due diligence.” Cannon, therefore, indicated to the jury
that he intended to rely on the advice of his counsel as a defense
to the charges stemming from Aero’s indemnification of Shaw’s
criminal defense. In other words, Cannon deliberately injected
an advice-of-counsel defense into this case, implicitly waiving any
privilege he held in any conversation he had with Berger about
whether Aero was legally obligated to indemnify Shaw. (See
Transamerica, supra, 188 Cal.App.3d at p. 1053.)
In short, the trial court did not abuse its discretion when it
found that Cannon waived any attorney-client privilege in
Berger’s testimony about whether he advised Cannon that Aero
was required to indemnify Shaw. The trial court, therefore,
properly admitted Berger’s testimony that he could not recall
ever providing such advice to Cannon.
Cannon next contends that the trial court abused its
discretion when it allowed Berger to testify about the series of
e-mails he exchanged with Cannon concerning whether Aero
could make payments for Shaw’s legal defense through Berger’s
law firm and whether Berger could amend the minutes from one

32
of Aero’s board meetings to make clear that one of the board
members did not participate in the board’s decisions. Even
assuming that this evidence should not have been admitted,
Cannon has failed to show he was prejudiced by its admission.
The wrongful admission of evidence protected by the
attorney-client privilege is generally reviewed under the
harmless error standard applicable to state law errors
established in People v. Watson (1956) 46 Cal.2d 818. (See People
v. Clark (1990) 50 Cal.3d 583, 623; People v. Gillard (1997)
57 Cal.App.4th 136, 163.) Under Watson, the defendant bears
the burden to establish the challenged error was prejudicial.
(People v. Alexander (2010) 49 Cal.4th 846, 910.) The burden,
therefore, is on Cannon to show that it is reasonably probable
that he would have obtained a different verdict had the trial
court excluded Berger’s testimony about his e-mail exchanges
with Cannon.
It is a fundamental rule of appellate review that an
“appellant must affirmatively show prejudicial error.”
(Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th
370, 403.) To meet this burden, the appellant must supply a
reasoned argument and legal authority to support his claim that
the challenged error was prejudicial. (Benach v. County of Los
Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).) “This burden
requires more than a mere assertion that the judgment is wrong.
‘Issues do not have a life of their own: If they are not raised or
supported by argument or citation to authority, [they are] …
waived.’ ” (Ibid.)
In his opening brief, Cannon asserts in a conclusory fashion
that he was prejudiced by the admission of Berger’s testimony
concerning their e-mail exchanges. Although Cannon identifies

33
the testimony that he claims should not have been admitted and
points to portions of the prosecutor’s closing argument
referencing that testimony, Cannon makes no effort to explain
why it is reasonably likely that he would have obtained a
different verdict had the court excluded the challenged testimony.
Indeed, Cannon does not discuss, let alone identify, what
harmless error standard applies to the wrongful admission of
evidence protected by the attorney-client privilege. “This
conclusory presentation, without pertinent argument or an
attempt to apply the law to the circumstances of this case, is
inadequate.” (Benach, supra, 149 Cal.App.4th at p. 852.)
Cannon has, therefore, waived any claim that the court’s
admission of Berger’s testimony concerning his e-mail exchanges
with Cannon was prejudicial. (See People v. Gallardo (2017)
18 Cal.App.5th 51, 69, fn. 11.)
4. Challenges to the perjury convictions in counts 2 and 7
Cannon next challenges his perjury convictions in counts 2
and 7. First, he argues that the People were required to charge
count 2, his perjury conviction for making false statements on one
of his Form 700’s, as a misdemeanor, and not a felony. Second,
Cannon argues that even if the People properly charged count 2
as a felony, insufficient evidence supports both perjury
convictions.
4.1. The Williamson rule does not apply to
count 2
Cannon contends that under the rule announced in In re
Williamson (1954) 43 Cal.2d 651, the People were required to
charge him in count 2 with violating Government Code sections
87201 and 91000, which make it a misdemeanor for a candidate
for public office to knowingly or willfully file a false financial

34
statement, as opposed to charging him with a felony violation of
section 118, which he claims more generally criminalizes making
false statements in sworn declarations. This argument lacks
merit.
“ ‘Under the Williamson rule, if a general statute includes
the same conduct as a special statute, the court infers that the
Legislature intended that conduct to be prosecuted exclusively
under the special statute. In effect, the special statute is
interpreted as creating an exception to the general statute for
conduct that otherwise could be prosecuted under either
statute.’ ” (Hudson v. Superior Court (2017) 7 Cal.App.5th 999,
1007 (Hudson), quoting People v. Murphy (2011) 52 Cal.4th 81,
86.)
The Williamson rule applies when: (1) each element of the
general statute corresponds to an element on the face of the
special statute; or (2) when a violation of the special statute will
necessarily result in a violation of the general statute. (People v.
Lucero (2019) 41 Cal.App.5th 370, 405 (Lucero).) “If the
Williamson rule applies, ‘the prosecution lacks power to
prosecute under the general statute where the alleged facts
parallel the acts proscribed by the more specific statute.’ ” (Ibid.)
However, if the more general statute contains an element
that is not included in the special statute, and that element
would not commonly occur in the context of a violation of the
special statute, courts do not presume that the Legislature
intended to preclude prosecution under the general statute.
(Lucero, supra, 41 Cal.App.5th at p. 405.) Thus, “[w]hen the
general statute includes an element not present in and imposes a
punishment harsher than the special statute, ‘it is reasonable to
infer that the Legislature intended to punish such conduct more

35
severely.’ ” (Hudson, supra, 7 Cal.App.5th at p. 1007.) “As a
result, the Williamson rule will not apply when, for example, a
felony statute requires a more culpable mental state than a
misdemeanor statute proscribing the same behavior.” (Ibid.)
As we explain, the Williamson rule does not apply here because
section 118 requires a more culpable mental state, an intent to
deceive, that is not required to violate Government Code sections
87201 and 91000.
To establish the crime of perjury under section 118, the
People must prove that the defendant made a willful statement
under oath or affirmation involving any material matter that the
defendant knows is false. (§ 118, subd. (a); People v. Garcia
(2006) 39 Cal.4th 1070, 1091.) “To commit perjury, the defendant
must (1) knowingly make a false statement, and (2) specifically
intend that the false statement be made under oath or penalty of
perjury.” (Banerjee v. Superior Court (2021) 69 Cal.App.5th 1093,
1103 (Banerjee).)
Under section 87201, a candidate for public office must
timely file a “statement disclosing the candidate’s investments,
the candidate’s interests in real property, and any income
received during the immediately preceding 12 months.” (Gov.
Code, § 87201.) To be guilty of a misdemeanor, the candidate
must knowingly or willfully violate Government Code
section 87201. (See Gov. Code, § 91000.) “The expressions
‘willfully,’ ‘knowingly,’ ‘intentionally,’ and ‘maliciously’ ” are
terms that do not reflect heightened intent beyond that to
“ ‘engag[e] in the proscribed conduct.’ ” (People v. Alvarado
(2005) 125 Cal.App.4th 1179, 1188.) Therefore, a misdemeanor
violation of Government Code section 87201 does not require a
particular heightened culpability. Because a felony violation of

36
section 118 requires a more culpable mental state than a
misdemeanor violation of Government Code section 87201, the
Williamson rule does not bar the People from prosecuting Cannon
for a felony violation of section 118.
Cannon’s reliance on Hudson to argue otherwise is
misplaced. There, the appellate court applied the Williamson
rule to hold that the People were required to charge the
defendant with a misdemeanor violation of Government Code
sections 87203 and 91000, which criminalize the filing of false
Form 700’s, as opposed to a felony violation of section 115, which
prohibits persons from knowingly procuring or offering false or
forged instruments. (Hudson, supra, 7 Cal.App.5th at pp. 1007–
1010.) As the court explained, both statutes required the “same
basic mental state, namely, that the defendant ‘knowingly’
committed the crime charged” (id. at p. 1010), but Government
Code section 87203 described the defendant’s “alleged failure to
disclose all of her assets and investments in her Form 700 with
better particularity” (Hudson, at p. 1008).
Unlike in Hudson, the two statutes at issue here do not
require the same mental state. As we just explained, a felony
violation of section 118 requires the intent to deceive, a more
culpable mental state than what is required to violate
Government Code sections 87201 and 91000. Hudson, therefore,
does not compel application of the Williamson rule in this case.
4.2. Substantial evidence supports Cannon’s perjury
conviction in count 2
In count 2, the jury found Cannon guilty of perjury under
section 118 stemming from his failure to disclose in his amended
Form 700 the full amount of income he received from Aero in the
12 months before he started working for the City of Palmdale.

37
Cannon argues this conviction is not supported by substantial
evidence because the People failed to prove he acted with the
intent to deceive when he made the underlying false statement.
A perjury defendant under section 118 must intend to make
a false statement under oath. (Banerjee, supra, 69 Cal.App.5th at
p. 1103.) In other words, the defendant must act with the intent
to deceive. (See ibid.) Because there is rarely direct evidence of a
person’s intent to commit a crime, intent is often proved through
circumstantial evidence. (People v. Owens (2022) 78 Cal.App.5th
1015, 1026.) As we explain, substantial evidence supports a
finding that Cannon acted with the intent to deceive when he
filed his amended Form 700. (People v. Wilson (2008) 44 Cal.4th
758, 806.)
Cannon began working as Palmdale’s economic
development manager on February 26, 2018. When he started
working for Palmdale, Cannon was required to file a Form 700,
disclosing any outside income that he received in the previous
12 months. On his original Form 700, Cannon stated that he
received no reportable outside income during the previous
12 months.
In April 2020, the FPPC contacted Cannon about his
failure to disclose the income he received from Aero in the year
leading up to his employment with Palmdale. In response to the
FPPC’s inquiry, Cannon claimed that he misunderstood the
requirements for disclosing outside income when he filed the
original Form 700. According to Cannon, he believed he was
required to disclose only the income he was then currently
receiving, not the income he had received in the 12 months before
he started working for the city. Cannon acknowledged that he
should have disclosed the income he received from Aero in 2017.

38
Nevertheless, when Cannon filed his amended Form 700 in
response to the FPPC’s inquiry, he failed to disclose all the
income that he received from Aero in the year leading up to his
employment with Palmdale. Specifically, Cannon stated that he
received between only $10,000 and $100,000 of income, even
though Aero paid him over $120,000 of income in 2017 and nearly
$69,000 of income in February 2018. Cannon did not dispute at
trial that his amended Form 700 understated the amount of
income he received from Aero.
At the time he filed his amended Form 700, Cannon was
aware that Shaw and Miller were being criminally prosecuted for
alleged financial misconduct while they worked for Aero. Indeed,
Cannon had already filed multiple declarations in Shaw’s
criminal case attempting to lift that court’s orders freezing Aero’s
bank accounts. The People also presented evidence that during
the reporting period covered by Cannon’s amended Form 700,
Cannon made illegal bonus and severance payments to himself
using the funds in Aero’s bank accounts. In light of these
circumstances, the jury reasonably could infer that Cannon
intentionally understated his outside income on his amended
Form 700 to conceal any illegal payments he made to himself
using money from Aero’s bank accounts in the 12 months leading
up to his employment with Palmdale.
Cannon argues that the evidence does not support a finding
that he acted with the intent to deceive when he understated his
Aero income on his amended Form 700. Specifically, Cannon
points to testimony from his former attorney that he (the
attorney) drafted the amended Form 700 and inadvertently
understated the amount of income that Cannon received from
Aero. According to Cannon, the attorney’s testimony shows that

39
it was the attorney’s and not Cannon’s fault that Cannon failed to
fully disclose the income he received from Aero when he filed his
amended Form 700. This argument is not persuasive for a few
reasons.
First, the jury could have rejected Cannon’s former
attorney’s explanation for why Cannon understated his income
on his amended Form 700. We do not second guess the jury’s
credibility findings on appeal. (Lindberg, supra, 45 Cal.4th at
p. 27.)
Second, the jury could have found that even though
Cannon’s attorney drafted the amended Form 700, Cannon was
aware that the document understated the amount of income he
received from Aero in the 12 months leading up to his
employment with Palmdale. Indeed, Cannon signed and filed the
amended Form 700. And while Cannon acknowledged to the
FPPC that he did not disclose the salary he received from Aero in
2017 when he filed his original Form 700, he failed to
acknowledge that he also received nearly $69,000 of income from
Aero in February 2018. Thus, the jury could have found that
Cannon was aware the amended Form 700 understated the
income he received from Aero in the 12 months leading up to his
employment with Palmdale, and that he did not correct the form
before filing it because he intended to conceal the full amount of
income he received from Aero.
Third, the testimony from Cannon’s former attorney
creates, at most, a conflict with the evidence that supports a
finding that Cannon acted with the intent to deceive when he
filed his amended Form 700. It is well settled that a reviewing
court will not reverse a judgment simply because the evidence
might also support findings that are contrary to those made by

40
the jury. (People v. Westerfield (2019) 6 Cal.5th 632, 713
(Westerfield).)
Cannon also contends that the evidence establishes he had
no reason to lie about the amount of income he received from
Aero because he disclosed on the resume that he submitted in
support of his application to work for Palmdale that he received
more than $150,000 in salary from Aero in 2017. This argument
also lacks merit.
Cannon’s resume states that throughout 2017, Cannon was
employed as a consultant in “Public & Private Sector Consulting”
in San Dimas with a salary of $153,000. Although that portion of
the resume states that Cannon had a contract with Aero to serve
as its executive director, the resume does not explicitly state that
the salary he received came from Aero. Rather, the resume’s
structure suggests that Cannon received his 2017 salary working
as a consultant in San Dimas. Additionally, because the resume
was submitted in late 2017, it makes no mention of the nearly
$69,000 of income that Cannon received from Aero in February
2018. The resume, therefore, did not disclose the total income
that Cannon received in the 12 months before he started working
for Palmdale. Accordingly, nothing in Cannon’s resume
precluded the jury from finding that Cannon acted with the
intent to deceive when he understated the amount of income he
received from Aero on his amended Form 700.
4.3. Substantial evidence supports Cannon’s perjury
conviction in count 7
In count 7, the jury found Cannon guilty of perjury because
he filed a sworn declaration in Shaw’s criminal case in which he
falsely stated that he was Aero’s sole board member when he
authorized the use of the organization’s funds to indemnify

41
Shaw’s criminal defense. Cannon contends that the People failed
to prove that he knowingly made a false statement or that he
made a false statement with the intent to deceive. We disagree.
Cannon made the underlying false statement in a
declaration that he filed in support of his request for the trial
court in Shaw’s criminal case to lift the order freezing Aero’s
bank accounts. In that declaration, Cannon claimed that he had
the power to authorize the use of Aero’s funds to pay Shaw’s legal
fees because he was Aero’s only board member at the time he
made that decision. That statement was false because, as
Cannon concedes, Aero had at least one other board member
when he decided to use the organization’s funds to indemnify
Shaw, and he never consulted that board member before making
that decision.
The evidence supports a finding that Cannon knew his
statement that he was Aero’s only board member at the time he
decided to indemnify Shaw was false. Aero’s publicly available
tax forms from 2017, the year Cannon authorized Shaw’s
indemnification, list Cannon as the organization’s director and
state that the organization had three voting board members.
Those forms specifically identify two other individuals as then-
serving board members. Although it is unclear whether one of
those individuals was still a voting board member at the time
Cannon decided to indemnify Shaw, the other individual testified
that he did not resign from Aero’s board until March 2018, well
after Cannon made the indemnification decision. Cannon did not
consult that board member before deciding to indemnify Shaw,
and that board member did not vote on that decision. Based on
this evidence, the jury could find that Cannon knew he was not
Aero’s only board member when he decided to use Aero’s funds to

42
indemnify Shaw and that he knew his statement to that effect
was false when he filed his declaration in Shaw’s criminal case.
The jury also could find that Cannon intended to deceive
the trial court in Shaw’s criminal case when he made that
statement. Cannon wanted the trial court to unfreeze Aero’s
bank accounts. To do that, Cannon needed to convince the trial
court that Aero’s funds were not being misused, including when
he decided to use the organization’s funds to indemnify Shaw.
Accordingly, the jury could have found that by falsely stating that
he was Aero’s only board member at the time he decided to
indemnify Shaw, Cannon intended to mislead the court into
finding that decision was legitimate.
Cannon argues his conviction must be reversed because
there was evidence that supports an inference that he did not
intend to deceive the trial court when he filed the declaration in
which he claimed he was Aero’s sole board member when he
decided to indemnify Shaw. Cannon points to evidence that he
claims shows he mistakenly believed he was the only board
member when he decided to indemnify Shaw. Cannon also points
to testimony from his former attorney, who told the jury that he
(the attorney) drafted Cannon’s declaration and inadvertently
assumed that Cannon was the only board member at the time
Cannon decided Aero would indemnify Shaw. This argument
lacks merit. As we already explained, reversal of a judgment “is
not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (Westerfield,
supra, 6 Cal.5th 632 at p. 713.)

43
DISPOSITION
The judgment is affirmed.

VIRAMONTES, J.

I CONCUR:

WILEY, Acting P. J.

44
SCHERB, J., Concurring

I concur, but write separately about the federal nature of
the funds at issue in this case.
A jury convicted defendant Curtis Cannon of, among other
charges, misappropriating public moneys in violation of Penal
Code section 424 and embezzling public funds in violation of
Penal Code section 514. (Further unspecified statutory
references are to the Penal Code.)
Section 426 defines public moneys for misappropriation
under section 424 and does so differently than section 514 defines
public funds for felony embezzlement.
Beginning with the misappropriation statutes, section 424,
subdivision (a)(1), prohibits “[e]ach officer of this state, or of any
county, city, town, or district of this state, and every other person
charged with the receipt, safekeeping, transfer, or disbursement
of public moneys” from, “appropriat[ing] the same, or any portion
thereof, to his or her own use, or to the use of another.” Section
426 defines “[t]he phrase ‘public moneys,’ as used in Sections 424
. . . , [to] include[] all bonds and evidence of indebtedness, and all
moneys belonging to the state, or any city, county, town, district,
or public agency therein, and all moneys, bonds, and evidences of
indebtedness received or held by state, county, district, city,
town, or public agency officers in their official capacity.”
Turning to the embezzlement statutes, sections 503 and
504, and other surrounding provisions, define variants of that
crime. Section 514 provides if an “embezzlement . . . is of the
public funds of the United States, or of this state, or of any
county or municipality within this state, the offense is a felony,
and is punishable by imprisonment in the state prison; and the

1
person so convicted is ineligible thereafter to any office of honor,
trust, or profit in this state.”
In short, while the embezzlement provisions reach “public
funds of the United States” as well as those of the state and
entities therein (§ 514), the misappropriation provisions reach
only money belonging to, received by, or held by those latter non-
federal entities. Cannon’s use of money, then, from NASA, a
federal agency, and disbursed to Aerospace Education Research
and Operations Institute, a nonprofit, is arguably beyond the
reach of sections 424 and 426 even if it falls within section 514.
It is critical that our statutes “ ‘ “ ‘provide fair warning
concerning conduct rendered illegal.’ ” ’ ” (People v. Reynoza
(2024) 15 Cal.5th 982, 1012–1013; see also People v. Superior
Court (Sahlolbei) (2017) 3 Cal.5th 230, 244.) “ ‘[T]hey must
provide a standard or guide against which conduct can be
uniformly judged by courts.’ ” (Woodland Joint Unified School
Dist. v. Commission on Professional Competence (1992)
2 Cal.App.4th 1429, 1453.) “ ‘ “[D]eprivation of the right of fair
warning can result not only from vague statutory language but
also from an unforeseeable and retroactive judicial expansion of
narrow and precise statutory language.” ’ ” (People v. Taylor
(1992) 7 Cal.App.4th 677, 693; see Bouie v. Columbia (1964)
378 U.S. 347, 352.) “[C]ourts cannot go so far as to create an
offense by enlarging a statute, by inserting or deleting words, or
by giving the terms used false or unusual meanings.” (Keeler v.
Superior Court (1970) 2 Cal.3d 619, 632.) “ ‘[C]rimes built up by
courts with the aid of inference, implication, and strained
interpretation . . . are repugnant to’ ” our history of
jurisprudence. (Ibid.) And this is so whether the assertedly
unlawful conduct may fall under the purview of another statute

2
or instead fall into a “gap” in the criminal law. (Id. at p. 633; id.
at p. 635.) A criminal statute “must be construed as favorably to
the defendant as its language and the circumstances of its
application reasonably may permit.” (People v. Franklin (1999)
20 Cal.4th 249, 253.)
A hundred years ago, our Supreme Court decreed “section
[424] has to do solely with the protection and safekeeping of
public moneys as defined by section 426 of the Penal Code, . . .
and with no other kind of public property.” (People v. Dillon
(1926) 199 Cal. 1, 5, italics in original.) Sixty years ago, the
Court of Appeal refused to apply section 424 against a defendant
accused of misusing funds of the Housing Authority of the City of
Los Angeles. (People v. Holtzendorff (1960) 177 Cal.App.2d 788,
793, 796–797 (Holtzendorff).) Although the court did not probe
where the housing authority’s funds might have originated, it
concluded funds of the authority were not public moneys because
section 426, as then worded, did not include public agencies
amidst its lists of public entities. (Id. at p. 797.) “The public
character of the Authority is not to be denied . . . . But it is not to
question the right of the Authority to condemn land for its
purposes, to hold its property tax free, to be supported by public
money, and to claim exemption from income and franchise taxes,
to conclude that, a public agency though it is, it is not the State,
nor a county, city, town or district. The Legislature, in adopting
the definition it gave in section 426 for the use of the words in
section 424, might have included moneys belonging to or officers
of a public corporation, but it did not.” (Ibid.)
Holtzendorff contrasted section 424 with the embezzlement
crimes of sections 503 and 504. (Holtzendorff, supra, 177
Cal.App.2d at pp. 794–796.) It concluded “a violation of section

3
424 is not the embezzlement of public moneys, as limited by the
definition of section 426; a violation of section 504 is the
embezzlement of public moneys, in those cases where public
moneys, even those not falling within the 426 description, are
involved.” (Id. at p. 802.)
By Holtzendorff’s logic, money of the federal government,
when not handled by a public entity or officer, falls outside
section 424’s ambit. This conclusion is bolstered by section 514
including funds of the United States. Had the Legislature wished
to expand the scope of section 424 over the past 60 years to
include all money belonging to the federal government, it could
have done so. Although the Legislature did respond to
Holtzendorff’s 1960 decision by amending section 426’s definition
of public moneys in 1967 to include money belonging to a state-
based “public agency,” the Legislature has gone no further. (See
Stats. 1967, ch. 718, § 1, p. 2089.) The Legislature might have
conceivably decided to leave the criminal regulation of funds
belonging to the federal government to section 514 and any other
applicable state laws, presuming federal authorities would, in
any event, be more likely to pursue misuse of their own funds
through their own criminal processes. (Compare People v.
Dillard (2018) 21 Cal.App.5th 1205, 1221 [although state
prosecutions for theft of federal money occur and can be
consistent with federal objectives, “ ‘[p]olicing fraud against
federal agencies’ ” is “ ‘hardly “a field which the States have
traditionally occupied” ’ ”], with Railton v. United States (5th Cir.
1942) 127 F.2d 691, 692 [the federal theft of public property
statute, former 18 U.S.C. § 82 (presently 18 U.S.C. § 641),
reaches property of the United States, not of localities and the
“grafting by a State official”]; United States v. Hicks (7th Cir.

4
2021) 15 F.4th 814, 817 [“Ownership is . . . the source of the
national government’s authority to penalize the theft.”]; United
States v. Miller (9th Cir. 1975) 520 F.2d 1208, 1210 [same].)
People v. Johnson (2012) 209 Cal.App.4th 800 involved a
section 424 prosecution asserting the operators of a private
nonprofit misused funds that “were a combination of state,
federal and county funds.” (Id. at p. 814, italics added.) The
inclusion of federal funds was “of no significance.” (Ibid.) Their
presence could not impede a prosecution when state and local
funds were also involved and where the agency controlling the
aggregated funds was a state agency, the Department of Social
Services. (Id. at pp. 804–805.) It was “manifest” the state agency
“retained an interest in, and extensive control over, all of the
funding provided.” (Id. at p. 814.) Johnson, though it mentions
federal funds, hardly authorizes prosecutions against
nongovernmental individuals when assertedly misused funds are
exclusively federal and controlled by a federal agency. After all,
the “specific question” in Johnson was not about the impact of
comingled federal funds, but when funds still “belong[]” to a
government entity — when they “retain[] this status” — after
disbursement. (Id. at pp. 810, 812.)
I can locate only one other authority addressing section
426’s definition of public moneys and funds belonging to the
federal government. An advice letter from the California Fair
Political Practices Commission addressed whether “a mass
mailing that is distributed by a city office but totally funded by
federal grants [is] a ‘mass mailing sent at public expense’?” (Cal.
FPPC, Advice Letter, No. I-89-096 (June 2, 1989) [1989 Cal. Fair-
Pract. Lexis 1101, at p. *1]; see People v. Thrasher (2009) 176
Cal.App.4th 1302, 1309 [discussing the limited role such letters

5
should play in courts’ analyses].) The letter concluded the phrase
“at public expense” meant paid for with “public moneys” as
defined by section 426. (Cal. FPPC, Advice Letter, No. I-89-096
(June 2, 1989) [1989 Cal. Fair-Pract. Lexis 1101, at pp. *8–9].) If
public moneys included money belonging to the federal
government, the letter could have simply said so. Instead, the
letter concluded the federal funds were public moneys because
they were “held and distributed by [a] city’s office of community
development” so were therefore, under section 426, “ ‘moneys …
received or held by … officers in their official capacity.’ ” (Id. at
p. *9.)
My colleagues pass over Cannon’s argument that sections
424 and 426 do not apply to misuse of funds belonging to and
controlled by the federal government. They rightly point out
Cannon forfeited this argument by failing to properly raise it in
his opening brief. It seems to me, however, that the scope of
sections 424 and 426 could benefit from further vetting.

SCHERB, J.

6