P. v. Joseph





Filed 1/28/11 P. v. Joseph CA6



NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. MOSES S. JOSEPH, Defendant and Appellant.

H033740 (Santa Clara County Super. Ct. No. CC592810)

A jury convicted defendant Moses S. Joseph of 11 counts of grand theft (counts 1-6, 8, 11-12, 16-17), five counts of securities fraud (counts 7, 10, 13-15), one count of embezzlement (count 9), three counts of forgery (counts 19-21), one count of preparing false evidence (count 23), and one count of offering a forged or altered document as genuine (count 24).[1] It also found true sentence-enhancement allegations for counts 1-17 (taking over $2 million--four years) and for counts 1-22 (white collar crime pattern taking over $500,000--two, three, or five years). The trial court sentenced defendant to 15 years and eight months consisting of a three-year term for count 8 plus seven years for the enhancements (4+3), consecutive one-year terms for counts 7, 10, and 13, and consecutive eight-month terms for counts 1-2, 4, and 11. It imposed concurrent terms for counts 3, 5, 9, 12, 14-17, 19-21, and 23. It stayed the sentences for counts 6 and 24. It ordered restitution to defendant’s victims that totaled over $20 million. And it awarded defendant 1,896 days of credit for time served--1,264 days of actual credit and 632 days of conduct credit.
On appeal, defendant contends that (1) the trial court transgressed his right to counsel and due process by limiting his access to counsel and the documentary evidence, (2) the trial court erred by instructing the jury on theft by false pretenses (counts 1-6, 11-12, 16), (3) the trial court erred by refusing his request to instruct the jury that repayment could be considered in determining an intent to steal (counts 1-6, 11-12, 16-17), (4) he suffered improper multiple convictions for theft because counts 8 and 9 involved theft of the same money and counts 10, 16, and 17 involved theft of the same money (People v. Bailey (1961) 55 Cal.2d 514 (Bailey)), (5) he suffered improper multiple punishment as to counts 9, 17, and 19-21 (Pen. Code, § 654 [prohibiting multiple punishments for a single act or course of conduct]),[2] and (6) he is entitled to additional conduct credits pursuant to retroactive application of the recent amendment to section 4019. The People concede defendant’s section 654 claim insofar as it applies to counts 19-21, and we agree that the concession is appropriate. We otherwise disagree with defendant and affirm the judgment.

background

Defendant started a venture capital company called Anila “to incubate startup companies.” Beginning in 2000, U.S. Bank extended lines of credit to defendant’s entities called Moses Joseph LLC, Anila.org, Inc., and Anila Investments LLC. The lines were guaranteed by defendant. U.S. Bank accepted defendant’s guarantee because it relied on fake documents prepared by defendant that concerned his personal wealth. For example, defendant submitted a brokerage statement showing assets of $30 million from a brokerage firm that had no record of defendant having been a client. The amount drawn on the credit lines fluctuated, but ultimately became fully extended and unpaid. In 2004, U.S. Bank sued defendant to recover $8 million. (Count 1.)
In 2001, Anila and Eastman Kodak formed a venture capital fund to invest in technology companies. Kodak ultimately deposited $3.7 million in the fund’s bank account based on defendant’s representation that Anila had contributed $4 million. Anila never contributed any money. Via various transfers from the fund’s bank account to defendant’s and Anila’s bank accounts, defendant took all but $597 and used Kodak’s money to buy a home in Carmel and land in the Santa Lucia Preserve. (Counts 8 & 9.)
In 2002, Silicon Valley Bank extended a $3 million capital call line of credit to an entity called Anila Fund II for the purpose of allowing the entity to invest in a new company before the entity completed collecting investment contributions from its limited partners. It did so because defendant submitted a partnership agreement showing that the entity’s limited partners included Hawaiian Electric Company, Ohio State University, the University of Minnesota, and Lincoln Vector Fund who had committed $67 million to the fund. In fact, the fund had no limited partners. The amount drawn on line fluctuated. Defendant defaulted with $1.5 million due. He paid off the amount after demand. (Count 5.)
PowerWan was a startup company touting technology “to push a very high speed signal through power transformers of a utility.” In 2003, Remington Partners, Inc., made three separate loans of $100,000 to PowerWan. Defendant guaranteed the loans by giving Remington a fake Forbes magazine article touting him as the “Bill Gates of Dishwashers” (the article was about someone other than defendant) and a false financial statement. PowerWan or defendant repaid one of the loans. Remington collected the balance due on the other loans from defendant after suing him. (Count 12.)
In 2003, Aerofund Financial loaned $2 million to defendant’s shell company, Mesa Semiconductor, so that Mesa could demonstrate that it had substantial assets with which to enter a partnership with the State of New Mexico for the purpose of keeping open the Phillips Semiconductor plant in New Mexico. Aerofund’s principal required that defendant guarantee the loan, deposit $2 million of defendant’s money with the loan proceeds, keep defendant’s money and the loan proceeds untouched in a bank account having Aerofund’s principal as a signatory, and repay the loan after 60 days. Aerofund wired the money to a bank account in New Mexico, defendant transferred the money to Anila’s bank account in Minnesota, defendant used $1.5 million of the money to pay Anila’s capital call line of credit at Silicon Valley Bank, and defendant used up the balance in the bank account. (Count 11.)
In 2003, defendant guaranteed a $200,000 loan from Arrowhead Consulting Group to PowerWan. PowerWan defaulted. When Arrowhead sued defendant and moved for summary judgment, defendant successfully resisted the motion by submitting an affidavit that attached an email from Arrowhead to defendant that directed defendant to convert the loan into PowerWan stock pursuant to the loan agreement. The email was a fake. (Counts 23 & 24.)
In 2004, Wells Fargo Bank extended a line of credit for $250,000 to defendant personally based on fake documents prepared by defendant that concerned his personal wealth. Defendant drew out and paid back amounts. Ultimately, he drew out the entire amount and owed Wells Fargo Bank over $300,000 by the time of trial. (Count 2.)
In 2004, defendant obtained a personal $4 million line of credit from Bank One by using fake documents and his promise to deposit $8 million in Bank One. Bank One advanced $340,000 before defendant made any deposit. Defendant deposited the money in PowerWan’s account. He never deposited the $8 million or paid back the advance. (Count 4.)
In 2004, defendant supported PowerWan’s application for a $9 million line of credit with Bridge Bank with false documents and statements. (Count 6.) For example, he falsely stated that PowerWan had a five-year $80 million per year contract with Vodafone New Zealand and supported the statement with a fake contract with a forged signature on behalf of PowerWan (count 19) and a letter of recommendation with a forged signature (count 20). As part of the transaction, defendant issued PowerWan stock warrants to Bridge Bank (count 7) with a forged signature (count 21). Bridge Bank advanced $500,000 to PowerWan, defendant interfered with the bank’s efforts to audit PowerWan’s financial condition, and the bank demanded repayment. PowerWan paid $267,000 and defaulted on the remainder.
In 2004, defendant persuaded his friend, Ajay Puri, to buy $150,000 in PowerWan stock by means of numerous false statements about PowerWan’s investors, principals, and attorneys. (Count 13.) He then persuaded Puri to buy a limited partnership interest in the entity Anila Fund III for $250,000 by means of false statements and documents. (Count 14.) He later persuaded Puri to buy another $100,000 in PowerWan stock by stating, among other things, that lawyers had mistakenly issued Puri $250,000 in stock and, with more stock than he had originally agreed to buy, Puri stood to gain from a dividend to be paid by Anila generated by Anila’s sale of PowerWan stock to an Australian investor for 10 times more than Puri had paid. (Count 15.) Defendant finally persuaded Puri to loan PowerWan $500,000 for 90 days by means of fake documents and false statements. For example, he gave Puri a fake appraisal of PowerWan’s intellectual property showing a value of $128 million. PowerWan became delinquent on the loan but finally repaid it over defendant’s objection. (Count 16.)
In 2005, defendant, individually and as trustee of his family trust, guaranteed a loan of $606,000 from Wells Fargo Equipment Finance to PowerWan for the purpose of buying an airplane. He supported the guarantee with fake documentation that supplemented the existing fake personal documents in possession of Wells Fargo Bank. For example, he submitted fake financial statements for PowerWan that falsely attested that the statements had been audited by Ernst & Young. And he submitted family trust documents showing assets over $10 million though no family trust existed. (Count 3.)
In 2005, defendant persuaded Itochu Corporation and Itochu Technology Ventures to each buy $1 million of PowerWan stock by using fake documents and false representations. (Count 10.)
From 2004 through 2005, defendant used his position as PowerWan’s chairman and acting CEO to embezzle $1.7 million of PowerWan’s money, which he deposited in a bank account that he used as “some kind of a personal boy’s toys funny account.” (Count 17.)

access to counsel and evidence

Defendant was arrested in May 2005 and held on $10 million bail. At a preliminary hearing in February 2007, defendant sought to reduce his bail on the ground that his Sixth Amendment right to counsel would be severely impacted if he were to remain in custody. He explained that the large volume of documents in the case required that he help his two attorneys “hands-on.” The trial court reduced bail to $5 million. It explained that defendant posed a flight threat and a financial threat to the community. As to the right-to-counsel issue, it offered that “the solution isn’t necessarily to walk [defendant] out of jail because this is a complex case.” It offered to make orders that might give defendant different privileges than other inmates but pointed out that the moving papers were not specific enough as to what orders would be appropriate.
During in limine proceedings in June 2008, defendant brought a motion to be released on supervised home detention during trial. His attorneys offered that they could not “get up to speed with the volume of material the way [he] is already familiar with it.” They argued that defendant could “greatly ease[]” the situation if he were present working with them because “no one . . . is as aware of what is going on as he is.” They urged: “And we think that our ability to defend him will be greatly enhanced if we have the opportunity to make him a real member of the team and have him indicate to us what the meaning is of a lot of these documents, where we can find the other documents. What these other documents say. And in fact have him to the actual pulling of these documents. Without it, we feel somewhat restricted and we are very concerned for his rights.” To the trial court’s inquiry, however, they conceded that they had represented defendant since 2005 and not made such a request since the preliminary hearing. To the trial court’s point that defendant had not demonstrated any changed circumstances since the last bail determination, they claimed that they had experienced an “uncomfortable feeling [sic] quite some period of time--but [were unable] to verbalize it. . . . And now just recently we have been able to determine this is the issue. We are not comfortable because of this, and allowing him to assist us may well go to ease that.” The trial court denied the motion. But it offered the following: “Now having said that, I do also believe that this case warrants some additional consideration with respect to anything this Court might be able to do to assist counsel in their ability to confer with their client above and beyond that that might be readily available at the jail.” It then allowed defendant to meet with his attorneys in the courtroom every Friday morning when court was not in session. At a later session, defendant renewed his request, and the trial court denied it. But it agreed to break early every Wednesday at 3:45 p.m. and allow defendant to possess two bankers boxes of documents in his jail cell.
Defendant contends that the trial court transgressed his rights to counsel and due process by limiting his access to the documentary evidence and counsel. He explains: “This case involved hundreds of thousands of pages of discovery and over 350 exhibits, most of which were multi-page financial and business documents. [Defendant’s] incarceration pending and during trial severely limited his ability to review the documents, discuss them with his attorneys, and assist them in understanding the facts and developing a defense strategy. Indeed, [defendant’s] attorneys repeatedly stated that they could not adequately represent [defendant] under these circumstances, and asked the court to make accommodations. Ultimately no adequate accommodation was made and [defendant] was denied effective assistance of counsel.”
We agree with the People and conclude this issue is forfeited on direct appeal.
In People v. Jenkins (2000) 22 Cal.4th 900 (Jenkins), the court stated: “Defendant contends that numerous adverse conditions of confinement before and during the guilt phase of [his] trial cumulated to impair his ability to assist in his defense and to defend himself in violation of the Sixth and Fourteenth Amendments of the United States Constitution and article I, section 15, of the California Constitution. He asserts that these violations included his right to due process of law, to assist in his own defense, to the effective assistance of counsel, to be present both physically and mentally at all proceedings against him, and ‘not to be compelled to stand trial except when able to meaningfully assist his counsel.’ He refers to periodic difficulties he experienced in obtaining access to the jail law library, to allegedly disruptive searches of his cell and legal materials, to periods in which he was deprived of appetizing food and kept in solitary confinement as punishment for disciplinary infractions in jail that he claims were not his fault, to transportation schedules that from time to time deprived counsel of the opportunity to confer with him in court after the daily proceedings had concluded and that deprived him of adequate sleep and the opportunity to work on his case, to being kept shackled while waiting to appear in court, and to the failure of jail authorities to protect him from the violence of other inmates. He contends that these adverse circumstances were imposed on him with the purpose of ‘grinding him down’ and that they cumulated to undermine his constitutional rights by so damaging his physical and mental condition that he was unable to assist counsel. He apparently contends that his condition was affected so adversely that he was, in effect, not ‘present’ at trial.” (Id. at p. 999.)
The court then observed: “We question whether the issue properly is before us on direct appeal. Although defendant repeatedly complained to the trial court regarding the conditions of his confinement, and on more than one occasion contended that he was--or soon would be--unable to assist in his defense as a consequence of adverse conditions of confinement, defendant does not assert on appeal that he made a motion for mistrial or other motion in which he asked the trial court to consider and rule on the contention that he asks this court to consider: that as a cumulative matter, adverse conditions of confinement before and during the trial deprived him of rights protected by the Sixth and Fourteenth Amendments.” (Jenkins, supra, 22 Cal.4th at pp. 999-1000.) The defendant had also given no reason to deviate from “the general rule” that an appellate court will not consider claims which could have been raised in the trial court by an appropriate method but were not. (Id. at p. 1000.)[3]
Here, as in Jenkins, defendant fails to show that he made a motion for mistrial (or new trial) based on the alleged deprivation of his constitutional rights, or that he pursued this claim by any other means to the point of obtaining a ruling on it. He made only two relevant motions: a pretrial motion for reduction of bail and, two years later on the eve of trial, a motion to be released. It is true that the motions involved vague assertions about “getting full effective assistance of counsel because of this situation.” But the motions centered on defendant’s flight risk, defendant’s danger to the financial community, and, as to the eve-of-trial motion, the lack of changed circumstances between the preliminary hearing and eve-of-trial motion. The motions did not rest on the constitutional issue and explain how defendant’s assistance of counsel was being impaired beyond generalities such as “our ability to defend him will be greatly enhanced if we have the opportunity to make him a real member of the team.” (See Jenkins, supra, 22 Cal.4th at p. 1001 [“Even taking defendant’s various complaints at face value, he was not deprived of all means of preparing his defense, but merely suffered circumstances he found disagreeable and disruptive.”].) Had such a motion been presented, we would be in a position to evaluate whether there was constitutional error and whether the People showed “that the defect was harmless beyond a reasonable doubt.” (People v. Alvarez (1996) 14 Cal.4th 155, 216, fn. 21.)
In short, defendant never “asked the trial court to consider and rule on the contention that he asks this court to consider: that as a cumulative matter, adverse conditions of confinement before and during the trial deprived him of rights protected by the Sixth and Fourteenth Amendments.” (Jenkins, supra, 22 Cal.4th at pp. 999-1000.) And, like the defendant in Jenkins, defendant offers no reason to deviate from the general rule that contentions not appropriately presented in the trial court are not preserved for appeal. (Id. at p. 1000.) He asserts in his reply brief that a motion for a mistrial would have been futile because of the trial court’s “lack of receptivity to counsel’s requests” and the “very nature of the problem.” We do not see why this is the case. The trial court ruled on the bail issue without prejudice to defendant’s right to seek relief for a constitutional violation. And the nature of the problem--counsel not knowing what documents were relevant--would necessarily reveal itself during trial. As conceded by defendant, he was familiar with the material and aware of what was going on. Thus, if defendant failed to produce a defense because his access to the documents or counsel was impaired, he could have sought relief in a motion for a new trial by pointing out the overlooked defense. Defendant cannot reasonably argue that it would have been futile to raise his contention by the appropriate procedural vehicle. To do so results in the anomaly that is defendant’s present posture. The People phrase it as follows: “[Defendant] is essentially saying that he should be granted a new trial because he committed a series of criminal schemes so complex that only he could understand them and that he thus could only be tried if he was released from jail pending trial.”
Defendant’s alternate claim is that he received ineffective assistance of counsel because counsel failed to raise his constitutional contention by the appropriate procedural vehicle. The claim fails.
“To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) ‘When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. “If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ [citation], the contention must be rejected.” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsel’s perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to make a motion, an attorney’s failure to contest an issue does not constitute deficient representation if the attorney has reasonably determined that a contest would be futile. (People v. Price (1991) 1 Cal.4th 324, 387.)
In a case such as this one, defendant’s burden is necessarily to show that, had trial counsel made the constitutional motion, the motion would have been granted. Despite defendant’s familiarity with the material and awareness of what was going on, defendant has not pointed to a single overlooked document or missed consultation that would have supported a motion for mistrial or new trial based on his constitutional claim. Thus, either counsel could have reasonably determined that making the constitutional motion would have been futile or defendant has failed to demonstrate prejudice from the failure to make such a motion.
Moreover, defendant effectively concedes that he cannot show prejudice from supposed ineffective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at p. 697 [when an ineffective assistance of counsel claim can be resolved on lack of prejudice, a reviewing court need not determine whether counsel’s performance was deficient].) Defendant essentially urges as prejudice that his attorneys “offered little in the way of factual defense,” pursued a “somewhat arcane legal argument,” and failed to “present a complete defense.” But he does not show what defense the attorneys failed to mount and how the failure was connected to the underlying constitutional claim that his attorneys should have raised. The claim is therefore based on speculation as defendant himself offers: “One can only speculate as to what additional evidence the defense might have produced, what additional cross-examination might have been conducted, and what additional arguments raised had counsel been adequately prepared.”
Defendant’s claim of ineffective assistance of counsel therefore fails.

instruction on theft by false pretenses

Counts 1-6, 11-12, and 16 charged defendant with obtaining loans or credit by means of false representations, fake documents, and the like. As to these counts, the trial court instructed the jury on theories of theft by false pretenses and theft by trick.
Regarding theft by false pretenses, the trial court instructed the jury in the language of modified CALJIC instructions that a guilty verdict required findings, among others, that (1) the defendant made a false promise “with the specific intent to defraud,” and (2) the owner of the stolen property “parted with his money or property intending to transfer ownership thereof.” Theft by false pretenses also requires corroboration and the trial court instructed on the point as follows: “The defendant cannot be convicted of grand theft by false pretense unless, one, the false pretense or some note or memorandum thereof is in a writing subscribed by the defendant or is in his handwriting; or, two, an oral false pretense is accompanied by a false token or writing; or, three, the false pretense is proved by the testimony of two witnesses or that of one witness and corroborating circumstances.”
Regarding theft by trick, the trial court instructed the jury in the language of CALCRIM No. 1805 that a guilty verdict required findings, among others, that (1) the owner of the stolen property consented to defendant’s possession because defendant used fraud or deceit, (2) “when the defendant obtained the property, he intended to deprive the owner of it permanently,” and (3) the owner of the stolen property “did not intend to transfer ownership of the property.”
Defendant explains: “Theft by false pretenses requires that the victim intend to transfer both title to and possession of the property, and requires only that the defendant act with an intent to defraud. Theft by trick or device applies when only possession, not title, is transferred [and] the defendant must have intended to permanently deprive the victim of the property.”
Defendant argues that the trial court erred by instructing on theft by false pretenses. According to defendant, “this was an incorrect legal basis for the theft charges because extending loans and credit by law does not transfer title to the money involved, making the applicable crime theft by trick or device. Because the instructions did not provide the [jury] any guidance on the issue of when title is transferred, it is likely that the jury convicted [him] under the inapplicable legal theory of theft by false pretenses, with its less stringent specific intent requirement [no need to prove intent to permanently deprive]. This error was prejudicial because there was evidence that [he] repaid many of the loans, from which the jury could have found that he did not intend to permanently deprive some of [sic] all of the lenders of their money.”
There is no merit to defendant’s contention.
The parties extensively debate whether the loans in question transferred possession and title to the underlying money or merely transferred possession of the money. From there, defendant urges that title did not pass--making the instruction on theft by trick applicable and the instruction on theft by false pretenses inapplicable. The People counter that title did pass--making the instruction on theft by false pretenses proper. We need not jump into this fray. Even supposing that theft by trick was the proper theory of theft in this case, it was at most harmless error to also instruct on theft by false pretenses.
“In People v. North (1982) 131 Cal.App.3d 112, 117-118 (North), the Second District Court of Appeal held that a theft conviction may be upheld as long as there is sufficient evidence, under any theory of theft, to support the conviction, even if the jury was not instructed on the relevant theory of theft. ‘Over [the defendant’s] objection, the jury was instructed on larceny by trick or device even though obtaining property by false pretenses is a more accurate description of the crime committed. [¶] The necessity of corroboration distinguishes false pretenses from trick and device and adds to the burden of proof the People must carry. Corroboration was present at bench . . . . In People v. Kagan (1968) 264 Cal.App.2d 648 . . . the jury was instructed on larceny by trick and device, embezzlement and false pretenses. The court, discussing the distinction between said types of theft said at page 658: “As to the California theft statute (§ 484), however, the cases all hold that a judgment of conviction must be affirmed if there is sufficient evidence to support a theft conviction on any theory. [Citations.] As stated in [People v.] Ashley [(1954) 42 Cal.2d 246, 258], ‘Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an “unlawful taking” has been proved.’ ” (Fn. omitted.)’ (North, supra, 131 Cal.App.3d at pp. 117-118.)
“Our own division has adopted the reasoning of North. (People v. Counts (1995) 31 Cal.App.4th 785, 792 (Counts).) In Counts, codefendant Mikels ordered lumber on credit for a project that did not exist and then sold the lumber at a discount to Counts. Mikels was convicted of three counts of grand theft and one count of attempted theft. (Counts, supra, 31 Cal.App.4th at pp. 787-788.) On appeal, Mikels argued that one of the counts of grand theft should be reversed because the lumber company retained a security interest in the lumber, which negated the element of transfer of title required to prove theft by false pretenses. Mikels claimed he could be convicted only of larceny by trick, a theory on which the jury had not been instructed. (Id. at pp. 788, 792.)
“The court observed that ‘[i]n California, the ancient common law distinctions between the theories of larceny by trick and theft by false pretenses no longer exist by statute; under section 484, there is simply one consolidated crime of theft, which the jury may find upon either theory, if there is an “unlawful [taking]” [citation].’ (Counts, supra, 31 Cal.App.4th at p. 793.) ‘ “The purpose of the consolidation [in section 952] was to remove the technicalities that existed in the pleading and proof of these crimes at common law. . . .” ’ (Counts, at p. 793, quoting People v. Ashley, supra, 42 Cal.2d at p. 258.)
“Mikels relied on People v. Curtin (1994) 22 Cal.App.4th 528, 531 (Curtin), in which Division Three of this court stated that ‘the offense shown by the evidence must be one on which the jury was instructed and thus could have reached its verdict.’ (See Counts, supra, 31 Cal.App.4th at pp. 791-792.) Mikels argued that, under Curtin, reversal of a theft conviction is always required if the defendant is found guilty of theft on the wrong theory.
“In Curtin the defendant was convicted of second degree burglary, grand theft, and forgery ‘arising out of a single incident in which he cashed a check at a bank by misrepresenting himself as one of the bank’s depositors and using a forged signature.’ (Curtin, supra, 22 Cal.App.4th at p. 530.) The jury was instructed on only one theory of theft, theft by trick and device, requiring ‘that in surrendering possession of the property, the victim of the theft “did not intend to transfer the ownership.” ’ The defendant argued, and the court agreed, that there was no evidence to satisfy this element of the offense. (Id. at p. 531.) Reversing, the Curtin court held that ‘if the elements of theft by trick were not proven, the conviction cannot be affirmed on the ground the evidence showed defendant’s guilt of false pretenses, which has additional required substantive elements, as well as a special corroboration requirement, upon which the jury was not instructed [citation].’ (Ibid.)
“Counts distinguished Curtin, noting that in Curtin ‘the instruction as to larceny by trick required the presence of evidence which did not exist in the record, and there was insufficient evidence of corroboration to sustain the conviction on a theory of false pretenses. [Citation.]’ (Counts, supra, 31 Cal.App.4th at p. 791.) Counts criticized the statement in Curtin that ‘the offense shown by the evidence must be one on which the jury was instructed and thus could have reached its verdict’ (Curtin, supra, 22 Cal.App.4th at p. 531) as dictum, and observed that ‘neither Curtin nor any decision cited therein actually holds there is a rule of per se reversal in such circumstances.’ (Counts, at pp. 791-792.)
“Counts found any error harmless, since ‘even under [the] appellant’s theory, the error caused the People to carry an unnecessary burden of proving corroboration in order to establish false pretenses. It is impossible to understand how an error which increased the People’s evidentiary burden could have prejudiced appellant.’ (Counts, supra, 31 Cal.App.4th at p. 793.) As the court observed, ‘[i]t would obviously be very hard to explain why a theft conviction should be reversed on the grounds that the evidence showed the defendant was indeed guilty of theft, but would have been guilty of a differently denominated type of theft under a common law system which has been repealed by statute. In the words of Justice Traynor, “it is immaterial whether or not [the jurors] agreed as to the technical pigeonhole into which the theft fell.” [Citation.]’ (Id. at pp. 793-794.)
“Similarly, in People v. Traster (2003) 111 Cal.App.4th 1377, the Second District Court of Appeal affirmed a conviction where the jury was instructed on theft by false pretenses, when theft by trick was the appropriate theory. The reviewing court observed that the error ‘is merely a technical one in which the jury was instructed on a particular theory of theft which turned out to be the wrong one. In these circumstances, the instructional error is harmless. This is particularly so in this case where the instructional error “caused the People to carry the unnecessary burden of proving [the additional element] of corroboration in order to establish false pretenses.” ’ (Id. at pp. 1389-1390, fns. omitted.)
“We acknowledge that the Third District Court of Appeal, in People v. Beaver (2010) 186 Cal.App.4th 107 (Beaver), recently followed Curtin in a similar situation. In Beaver, the defendant was convicted of grand theft after he staged an accident at the ski resort where he worked to obtain medical treatment for a prior injury to his knee and to collect a cash settlement. (Id. at pp. 110-111.) The jury was instructed on theft by larceny. (Id. at p. 119.) The defendant argued, on appeal, that a larceny instruction was not appropriate because the evidence showed only theft by false pretenses. (Id. at pp. 119-120.) Accordingly, he argued that the jury was permitted to convict him by finding he intended to deprive his employer of property, but without also finding that he intended to take possession of the property in the first place or that his employer relied on his representations or pretenses, which are elements of theft by false pretenses. (Id. at p. 120.)
“The Third District Court of Appeal agreed that, because the defendant’s employer willingly paid for his medical treatment on the false representation that it had caused his injuries, theft by false pretenses was the appropriate offense. (Beaver, supra, 186 Cal.App.4th at p. 121.) Relying on Curtin, the court also rejected the People’s argument that ‘the consolidation of all theft offenses into the single crime of theft in section 484 means the precise theory utilized by the prosecution does not matter as long as the evidence supports the elements of at least one of the consolidated offenses.’ (Id. at pp. 122-123.) The court noted that the discussion of Curtin in Counts was itself dictum. It also distinguished Counts, observing that the elements of theft by trick are subsumed within the elements of theft by false pretenses but that the elements of theft by false pretenses are not subsumed within the elements of theft by larceny. Because the instructions read to the jury did not include all the elements necessary for theft by false pretenses, the failure to instruct on those elements violated the defendant’s constitutional rights to have the charges decided by a jury even if there was sufficient evidence in the record to support such a charge. (Id. at pp. 124-125.) The error could not be deemed harmless because ‘even if there was evidence in the record to support [the elements of theft by false pretenses], the jury was never called upon to determine if they had been established beyond a reasonable doubt.’ (Id. at p. 125.)” (People v. Fenderson (2010) 188 Cal.App.4th 625, 637-640 (Fenderson), fn. omitted.)
In Fenderson, the trial court instructed the jury on theft by larceny and the defendant contended on appeal that theft by embezzlement was the proper theory. The court held that the failure to instruct on embezzlement was, if error, harmless because the larceny instruction was “correct on the facts of this case.” (Fenderson, supra, 188 Cal.App.4th at p. 641.) And it supposed that, if embezzlement were the correct theory of the case, any error in the failure to instruct on embezzlement was harmless because “Embezzlement is theft [citation] and is chargeable as theft. [Citation.] ‘[T]here are no conflicts between the elements to prove, or the punishment for, embezzlement under section 484 and embezzlement defined in section 507. Each is punished “in the manner prescribed for theft of property of the value or kind embezzled.” (§ 514.)’ [Citation.] As with larceny by trick and obtaining property by false pretenses, embezzlement and grand theft by larceny are ‘aimed at different criminal acquisitive techniques . . . [but,] with other larcenous crimes, have been consolidated into the single crime of theft (. . . § 484) . . . .’ ” (Ibid., fn. omitted.)
Fenderson and Beaver, a case that defendant relies upon, disagree on whether the failure to instruct on the applicable theory is reversible error. But, here, we do not have a failure to instruct. The trial court instructed the jury on the applicable theory and also, according to defendant, an inapplicable theory. The cases all agree that a judgment of conviction must be affirmed if there is sufficient evidence to support a theft conviction on any theory and the offense shown by the evidence is one on which the jury was instructed and thus could have reached its verdict. (Fenderson, supra, 188 Cal.App.4th at p. 638.) There is no instructional error in this case.
Moreover, defendant’s complaint centers upon the differing elements of theft by trick and theft by false pretenses and his concern that the jury may have convicted of theft by false pretenses instead of theft by trick. But, notwithstanding defendant’s attempt to distinguish between the elements of intent to permanently deprive (theft by trick) and intent to defraud (theft by false pretenses), the cases hold that the elements of theft by trick are subsumed within the elements of theft by false pretenses. (Fenderson, supra, 188 Cal.App.4th at p. 640.) And the necessity of corroboration distinguishes theft by false pretenses from theft by trick and adds to the burden of proof the People must carry. (Id. at pp. 637-638.) If indeed the jury in this case convicted defendant on the theory of theft by false pretenses, it is impossible to understand how a conviction under a theory that subsumed the supposed proper theory and increased the People’s evidentiary burden could have prejudiced defendant. (Id. at p. 639.)

refusal to instruct on repayment

The trial court instructed the jury in the language of CALJIC No. 14.46 as follows: “It is not a defense to a prosecution for theft that after the theft was committed, complete or partial restitution or offer of restitution was made to the owner of the stolen property, or that his loss was wholly or partly recovered by any other means.”
Defendant had requested the trial court to add the following language to the instruction: “However, complete or partial restitution is a factor you can use to determine whether or not a defendant had the required mental state to commit the offense, paren, S, offenses.” He urged that CALJIC No. 14.46 was one-sided: “[T]o make this instruction evenhanded it should go both ways. There is a time you can look at it and it’s not something that provides a defense or would allow you to find reasonable doubt. However, there’s another way to look at it that may allow you to find reasonable doubt, and that’s all we’re saying.” The People objected on the ground that the language was argumentative: “I think defense can argue that the evidence is there. . . . there’s no clear understanding on my part as to why that explanation of how the jury can use evidence should be added, but not all the millions of other ways the jury could use the evidence.” The trial court refused defendant’s proffered language. It explained: “I think the instruction is extremely specific as it exists. It says it’s not a defense to theft if, after the theft was committed--this means that the jury has already found based on all of the evidence that the defendant took the property of another by the three enumerated means and did so with the required mental state. [¶] One could look at virtually every instruction here and say we need to add more to make it evenhanded. Take, for example, the instruction proffered by the defense, failure to pay a loan by itself is not a crime. However, failure to pay a loan may reflect the defendant’s specific intent to deprive the owner of his property permanently. The instructions as they stand are sufficient, they’re clear, and they do correctly state the law, and there’s no need to find in every place where both arguments are not presented in the instruction. I’m not going to modify the CALJIC instruction on that point, counsel. Of course, that leaves you free to address it.”
In arguing to the jury, defendant first touched on the repayment concept in passing as follows: “Some of these people got paid back fully. Some of these people got paid back partially. [Defendant] lost his shirt. [¶] Now, does that make everything he did right‌ No. But let’s put it in context. He’s not out there stealing people’s money. He’s out there trying to make money for them.” And he generally argued that he was running legitimate businesses in an attempt to make money and his victims were sophisticated business people who wanted to make money and therefore did not rely on his various falsities. But, in specifically addressing the People’s argument that counts 1-6, 11-12, and 16 were thefts by false pretenses, his strategy was to concede the elements of the theory except the transfer-of-ownership element. As to false pretense, he acknowledged: “Got 200 plus documents which we’ve admitted, which we didn’t challenge, [defendant] is responsible for. And they are lies. They are financial lies, they are factual lies, they are lies.” As to specific intent to defraud, he supposed: “Even if he intended to pay people back, even if he was robbing Peter to pay Paul to keep the ball up in the area so that hopefully this technology would hit, we don’t like it, and we’ll find that it was intent to defraud.” And, as to reliance, he accepted: “They all said the magic words, and to some degree there were people that were more credible than others, but you could conclude he’s proven that.” But, as to transfer of ownership, he argued that “A loan is a loan, whether it be a bank, an institution, a lender, a person, when they lend money, we say they don’t intend to transfer ownership of the money. They want their money back. When you borrow money, when anyone in society borrows money, do borrowers conclude this is now my money‌ No. Borrowers universally conclude I’m using the bank’s money.” He emphasized: “And my last point will raise the question why did you talk so much about all the elements because my last point is this. This is one of those counts where the DA’s theory is theft by false pretenses. Which witness from the bank came in here and said as to this six, seven, eight, nine million, whatever we loaned to [defendant], we intended to transfer ownership. No one came in and testified to that. [¶] Obviously they didn’t intend to transfer ownership. They were loaning the money, not turning title to the money over to [defendant]. They were loaning the money. Therefore, that fourth element of theft by false pretenses by definition has not been proven. It is a square peg in a round hole. It is simply not theft under that theory.” But he alternatively argued the repayment point: “And I’ve put in capital letters that restitution repayment is strong evidence of no intent to permanently deprive. I put that up there thinking that this was going to be a count under which the DA’s theory was theft by trick or device. Apparently it’s not. If it’s theft by trick or device, the DA has to prove that [defendant] intended to permanently deprive the owner or to remove the money from the owner’s possession for so long as to deprive the owner of the use of his money. That’s not their theory, apparently, or it might be a backup theory. So if it’s a backup theory when [the prosecutor] gets up to talk about it again, I say to you on this count as well as many others, the fact that [defendant] paid the money back, even if he paid it back with money that he borrowed from another lender, it’s not theft. It simply isn’t theft. It’s not trick or device, it’s not embezzlement, he was borrowing this money for the most part to keep the company alive as the evidence showed, and it’s not false pretenses.” He added: “The repayment, the restitution, we suggest to you that even though restitution and repayment is not a defense, it does shed light on whether there was initially an intent to defraud or an intent to steal. And I say to you it’s common sense that if someone intends to defraud or intends to steal, they don’t pay the money back. And so the fact that in so many of these counts the money was paid back is evidence which raises a reasonable doubt in reasonable persons’ minds whether the DA has proven intent to defraud up front. I suggest to you that it does not.”
Defendant contends that the trial court erred by refusing his requested modification of CALJIC No. 14.46 because the modification was “legally accurate and not argumentative.”
“ ‘A trial court must instruct on the law applicable to the facts of the case. [Citation.] In addition, a defendant has a right to an instruction that pinpoints the theory of the defense. [Citation.] The court must, however, refuse an argumentative instruction, that is, an instruction “of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.” ’ ” (People v. Panah (2005) 35 Cal.4th 395, 486.)
A proper “pinpoint” instruction highlights not specific evidence, but the defendant’s theory of the case. (People v. Daniels (1991) 52 Cal.3d 815, 870; People v. Wright (1988) 45 Cal.3d 1126, 1137-1138.) “ ‘[I]nstructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories “is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.” ’ ” (People v. Roberts (1992) 2 Cal.4th 271, 314.) None of the cases say “ ‘ “that upon request the judge must direct the attention of the jury to specific testimony and tell the jury it may look to that testimony for the purpose of forming a reasonable doubt on an issue.” ’ ” (People v. Wright, supra, at p. 1137.)
Here, defendant’s proffered modification to CALJIC No. 14.46 pinpoints specific evidence--complete or partial restitution--and invites the jury to look to that evidence for the purpose of forming a reasonable doubt about defendant’s mental state for theft.
Defendant relies on People v. Katzman (1968) 258 Cal.App.2d 777 (Katzman), and People v. Braver (1964) 229 Cal.App.2d 303 (Braver). However, the issue in Katzman was whether the trial court should have instructed the jury sua sponte that attempts at repayment are evidence of lack of intent to defraud. The court rejected the contention and offered dictum that “such an instruction would have been proper under Braver if requested.” (Katzman, supra, at p. 792.) But the question in Braver was not whether the trial court had erred in refusing an instruction that repayment could be considered on the issue of intent to defraud but whether the trial court had erred in refusing to admit evidence of repayment on the issue of intent to defraud. (Braver, supra, at pp. 305-308.) Thus, defendant cites no on-point authority in support of his claim.
The CALCRIM instructions have given some life to the Katzman dictum. CALCRIM No. 1862 instructs on the principle that the return of property is not a defense to theft: “If you conclude that the People have proved that the defendant committed [charged theft offense], the return or offer to return (some/all) of the property wrongfully obtained is not a defense to that charge.” In the discussion following CALCRIM No. 1900 on forgery, the advisory committee cites Katzman for the proposition that, on request, “the defense may be entitled to a pinpoint instruction that evidence of restitution may be relevant to determining if the defendant intended to defraud.” (Italics added.) The committee then offers: “If the court concludes that such an instruction is appropriate, the court may add the following language to the beginning of CALCRIM No. 1862: [¶] If the defendant returned or offered to return [some or all of the] property obtained, that conduct may show (he/she) did not intend to defraud. If you conclude that the defendant returned or offered to return [some or all of the] property, it is up to you to decide the meaning and importance of that conduct.” (Italics added.)
We need not jump into this fray. Even when a requested pinpoint instruction is proper, the trial court’s refusal to give such an instruction is examined for a determination whether it was reasonably probable that the jury would have come to a more favorable result had the instruction been issued. (People v. Earp (1999) 20 Cal.4th 826, 887; People v. Hughes (2002) 27 Cal.4th 287, 362-363.)
Assuming without deciding that the trial court erred by refusing to instruct the jury with defendant’s proffered modification to CALJIC No. 14.46, we conclude that there is no reasonable probability that the jury would have reached a result more favorable to defendant had the trial court instructed the jury with defendant’s proffered modification.
First, the repayment point was not defendant’s principal theory for acquittal. As evident from what we have recounted, the People’s theory was theft by false pretenses and defendant’s theory was that a loan does not transfer title to the money loaned.
Second, defendant argued the repayment point to the extent that he wanted. The concept that repayment could raise a reasonable doubt about a defendant’s intent to defraud is not difficult to understand without an instruction to that effect.
And third, defendant conceded that, at the very least, the evidence supported an intent to defraud. While defendant presumably made the concession because of the evidence against him and as a matter of tactics, the concession was nevertheless inconsistent with the back-up argument that repayment evinced a lack of intent to defraud. It is not reasonably probable that the jury would have run with defendant’s modification to CALJIC No. 14.46 to evaluate whether defendant’s repayment evinced an intent to defraud in the face of defendant’s concession that the evidence supported an intent to defraud.

multiple convictions

Defendant stole from Kodak by persuading Kodak to deposit $3.7 million in the venture capital fund (count 8--grand theft). He then took Kodak’s money and used it to buy property in Carmel and the Santa Lucia Preserve (count 9--embezzlement).
Defendant stole $2 million from the Itochu companies by persuading them to buy PowerWan stock (count 10--securities fraud) and $500,000 from Puri by persuading him to loan that amount to PowerWan (count 16--grand theft). Defendant then took Itochu’s and Puri’s money when he took $1.7 million from PowerWan (count 17--grand theft).
Defendant contends that the conviction for count 9 should be reversed because the count involves theft of the same money involved in count 8. And he similarly contends that the conviction for count 17 should be reversed because the count involves theft of the same money involved in count 10 or 16.
Defendant’s argument is based on Bailey, supra, 55 Cal.2d 514, which held that “a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.” (Id. at p. 519.)
Normally, every separate act that violates one or more statutes gives rise to a separate offense. (People v. Neder (1971) 16 Cal.App.3d 846, 851-852.) “In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.” ’ ” (People v. Reed (2006) 38 Cal.4th 1224, 1226.)
However, “in a series of takings from the same individual, there is a single theft if the takings are pursuant to one continuing impulse, intent, plan or scheme, but multiple counts if each taking is the result of a separate independent impulse or intent.” (People v. Packard (1982) 131 Cal.App.3d 622, 626 (Packard).) This rule is sometimes referred to as the “Bailey doctrine.” (See, e.g., People v. Drake (1996) 42 Cal.App.4th 592, 596.)
Bailey involved a defendant who engaged in multiple acts of petty theft, with the aggregate of the petty thefts amounting to over $3,000 in public funds over one year. At the time of her conviction, the theft of property worth more than $200 was grand theft. The trial court instructed the jury that “if 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 so taken does exceed $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.” (Bailey, supra, 55 Cal.2d at p. 518.) The defendant was convicted of a single count of felony grand theft. Thereafter, she moved for a new trial and argued that the instruction was erroneous. The trial court granted the defendant’s motion for a new trial, and the People appealed.
Bailey held that the jury was properly instructed and reversed the trial court’s order granting a new trial. The court noted that the uncontroverted evidence showed that the defendant was guilty of theft, but “the question is presented whether she was guilty of grand theft or of a series of petty thefts since it appears that she obtained a number of payments, each less than $200 but aggregating more than that sum.” (Bailey, supra, 55 Cal.2d at p. 518.) It held: “[t]he test applied . . . in determining if there were separate offenses or one offense is whether the evidence discloses one general intent or separate and distinct intents. . . . [W]here a number of takings, each less than $200 but aggregating more than that sum, are all motivated by one intention, one general impulse, and one plan, the offense is grand theft.” (Id. at p. 519.) Bailey further e