Opinion
G053337
05-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES FARAGALLA BISHAY, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Susan Elizabeth Miller, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11WF0661) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed in part; reversed in part and remanded for resentencing. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Susan Elizabeth Miller, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted James Faragalla Bishay of grand theft (Pen. Code, §§ 484 & 487, subd. (a), all further statutory references are to the Penal Code), forgery (§ 470, subd. (d)), and recording a false or forged instrument (§ 115, subd. (a)). In addition, as to the grand theft count, the jury found true an allegation the taking exceeded one million dollars (§ 12022.6, subd. (a)(3)). Finally, as to the forged recording count, the jury also found true an allegation Bishay committed an aggravated white collar crime by engaging in a pattern of related fraudulent felony conduct (§ 186.11 , subd. (a)(1)(2)).
The trial court sentenced Bishay to two years imprisonment on the forged recording charge, an eight-month consecutive term on the grand theft charge, and a two-year concurrent sentence on the forgery charge. An additional two-year consecutive term was imposed for the excessive taking enhancement and a three-year consecutive sentence for the aggravated white-collar crime enhancement, resulting in a total sentence of seven years, eight months. Bishay appeals his conviction and his sentence.
We reverse the sentence. The trial court must vacate Bishay's concurrent sentence on the forgery conviction, and instead impose and stay a sentence on that count pursuant to section 654. In all other respects, we affirm the judgment.
While this appeal was pending, the trial court held a restitution hearing and issued restitution orders. In a separate appeal, Bishay also contests these restitution orders, as well as the amounts awarded, and we address those issues in a companion decision (People v. Bishay (May 21, 2018, G054005) [nonpub. opn.]). In addition, while both direct appeals were pending, Bishay filed a petition for writ of habeas corpus, which we deny in a separate order (In re Bishay (May 21, 2018, G054704) [nonpub. order]). We have previously granted Bishay's request for judicial notice of the records in all these related matters. (Evid. Code, §§ 452, subd. (d)(1) & 459, subd. (a).)
FACTS
I. Prosecution Case
Said "Sam" Messiha is a jeweler in Los Angeles County. He was first introduced to James Bishay through a mutual acquaintance, Hani Wasef, who Messiha had known in their native Egypt and with whom he had recently rekindled a friendship. In October 2005's red-hot real estate market, Messiha sold a residence for a profit of almost one million dollars. Concerned over the tax implications of this sale, he needed to reinvest the money quite soon to avoid additional capital gains taxes.
Bishay and Wasef approached Messiha and convinced him to invest his $957,736.92 in a commercial property in Alhambra they were purchasing for $9.5 million. The plan was that Bishay, Wasef, and Messiha would each contribute one million dollars, and Messiha's good credit would be used to obtain a loan to finance the remainder. Bishay told Messiha the seller of the Alhambra property was Shoreline, LLC (Shoreline), but did not disclose he owned Shoreline. Moreover, the Alhambra property was not yet owned by Shoreline, and instead Shoreline was then in escrow in its attempt to buy the property from its then-current owner.
In December 2005, Messiha wired his $957,736.92 to an escrow company in Santa Ana, with the understanding Wasef and Bishay would also each wire a similar amount to the escrow account. After that, Bishay became evasive and refused to return Messiha's telephone calls, until one day Bishay walked into Messiha's Los Angeles office with what purported to be a grant deed, telling Messiha the Alhambra deal had finally closed. Not realizing it at that time, however, Messiha failed to notice the deed had never been recorded.
In October 2006, Bishay showed up at Messiha's office and told him the Alhambra deal never actually closed, and he no longer had Messiha's money. Bishay claimed there had been a problem with the title, and somehow Messiha's money was gone. Moreover, the IRS deadline had now passed, and Messiha would soon be facing a $200,000 tax bill. Bishay drove Messiha to Bishay's Orange County office and Wasef was there. Bishay gave Messiha the file on the Alhambra property for his review. Instead, Messiha took the file and left.
Back at his office, Messiha examined the file and learned Bishay owned Shoreline, and Bishay was selling the Alhambra property for $9.5 million while at the same time trying to buy it from its true owner. It turned out Bishay and Wasef, as co-owners of Shoreline, had offered to buy the Alhambra property from its owner for $5.3 million. Escrow opened in November 2005, but the deal never closed. The escrow agent handling the Alhambra deal testified trying to sell a property before you own it is sometimes referred to as a "double escrow," and is illegal. No criminal charges were ever brought regarding the Alhambra deal.
Understandably upset, on October 16, 2006, Messiha had another meeting with Bishay and Wasef. They offered him an interest in another commercial property investment deal, this time in an Orange County property in Los Alamitos. It turns out that in January 2006, a month after Messiha had given Bishay his $957,000, Bishay (again as Shoreline) bought a Los Alamitos commercial property from the Webb Family Foundation ("Webb") for about $3.5 million. Shoreline gave Webb some cash up front, and Webb took back a promissory note for $2.7 million, and recorded a deed of trust to secure the note. Bishay made only a few monthly payments to Webb, and by April 2006, Webb filed a notice of default, and by November 2006, began formal foreclosure proceedings.
Meanwhile, in April 2006 Shoreline sold or transferred the Los Alamitos property to a second company, Los Alamitos Square, LLC (Los Alamitos Square), which was owned by Bishay and Bishay's brother Joseph Bishay. The sale price on the grant deed was recorded as $6.75 million, but Bishay later admitted no money ever actually changed hands between Shoreline and Los Alamitos Square in this transaction.
Bishay's October 2006 proposal to Messiha involved giving Messiha a one-third interest in Los Alamitos Square in exchange for Messiha's lost cash plus the additional taxes he now owed. Bishay prepared a handwritten promissory note for $1.2 million, which would be secured by a deed of trust on the Los Alamitos property. Bishay assured Messiha his trust deed would be second in line, with Webb's deed first in line. Messiha's understanding was his now $1.2 million loss in the Alhambra deal would buy him a one-third partnership interest in Los Alamitos Square, which owned the new Los Alamitos property, with Bishay and Wasef also each having a one-third interest.
Messiha took the handwritten agreement and talked to his attorney, who recommended Messiha record a deed of trust against the Los Alamitos property, but it was not until November 22 Messiha did so. What Messiha did not know at the time was that on October 19, three days after Messiha obtained his promissory note, a new $6.5 million lien had been placed on the Los Alamitos property by yet another company, variously called "The Rock of Ages, Inc." or "TROA." As a result, TROA's deed was now second in line, and when Messiha's deed was finally recorded, it became third. Perhaps not surprisingly, TROA was owned by Bishay and his brother Joseph Bishay.
In January 2007, acting on behalf of Los Alamitos Square, Bishay applied for a commercial real estate loan from Pacific Premier Bank (Bank), purportedly to refinance the Los Alamitos property and pay off Webb's note. In March 2007, the Bank funded the loan in the amount of $3.125 million. The loan was an 18-month loan, with monthly interest-only payments of about $25,000 for 18 months, after which the entire principal would come due. One of the loan terms was both TROA's and Messiha's secondary and tertiary trust deeds had to be removed prior to funding.
While processing Bishay's loan application, the Bank had some concerns regarding the property's history. Webb originally owned the property, and sold it to Shoreline for $3.25 million, and very soon after that, it was transferred to Los Alamitos Square for $6.75 million. The Bank's Chief Credit Officer was concerned about the jump in value over such a short period of time. "[P]roperty doesn't double in value overnight," he testified.
This concern triggered a telephone call to Bishay. Bishay assured the Bank that Webb sold the property to Shoreline, which was a "close contact" of the Webb family, and this was why the original price was below market. Bishay further explained Shoreline was not able to "gain traction" on redeveloping the property as it had planned, so it decided to instead sell the property to Los Alamitos Square for its true market value. Bishay never disclosed he owned Shoreline.
In mid-2007, Messiha learned a forged reconveyance deed had been recorded, completely removing his interest in the Los Alamitos property. This was done without his permission or knowledge. Furthermore, the notary's signature and seal on the reconveyance deed were also forged.
Had the Bank known that Bishay's assertion Shoreline was a "close contact" of the Webb family was actually untrue, the loan would never have been funded. Similarly, had the Bank known Messiha's lien had been removed without his knowledge and permission, it would never have lent Bishay the money. Finally, the Bank would never have made a loan of this amount on undeveloped land unless it was the senior lien-holder and was satisfactorily assured all other liens had been removed.
Nonetheless, apparently satisfied with Bishay's explanations, the Bank approved the loan, also relying in part on an independent appraisal of the property showing a market value of $6 million. After approval, the $3.125 million in loan proceeds were disbursed, with $2.6 million going to Webb, about $400,000 to Bishay, and the remainder to closing costs and taxes.
Soon thereafter, two major problems arose for the Bank. First, having discovered his trust deed was no longer recorded against the property, Messiha filed a lawsuit claiming he had a senior interest in the property. And second, Bishay stopped making his monthly payments to the Bank. Normally, the Bank would have immediately foreclosed on the basis of Bishay's payment delinquency, but Messiha's lawsuit froze any possible foreclosure proceedings during the pendency of that litigation.
II. Defense Case
Bishay testified in his own defense, and for the most part denied or could not remember the details of the prosecution's evidence. He characterized himself as a real estate broker, and said he had been one his entire adult life. He and Wasef had formed Shoreline so as to take part in the very busy and lucrative 2005 real estate market. Prior to meeting Messiha for the first time, Shoreline/Bishay/Wasef had opened escrow to purchase the property in Alhambra for $5.3 million. Bishay initially did not want Messiha to be part of the Alhambra deal, but Wasef eventually convinced him otherwise. Bishay testified at this point he had no knowledge of what part Messiha was going to play in this investment; that was all between Wasef and Messiha. Eventually, he came to believe Messiha, through his own LLC, was going to buy the Alhambra property from Shoreline for over $9 million at the same time Shoreline bought it from its original owner for $5.3 million. Bishay admitted this was a "double escrow," but insisted it was legal if the buyer was aware, and he maintained Messiha was aware. Bishay denied pressuring Messiha to sign any documents, and testified Wasef had handled everything with Messiha.
According to Bishay, this double escrow deal required Messiha to give Shoreline $957,000 cash up front, as well as secure a loan sufficient to cover the $9 million-plus purchase price. Shoreline could then use that money to complete its purchase of the property. When completed, Messiha was to take full ownership of the Alhambra property, with the understanding Messiha would then come back to Bishay and Wasef to develop the property together, with Bishay and Wasef each owning 33 percent and Messiha owning 34 percent.
Bishay admitted Messiha wired $957,000 to the escrow company, as instructed, which then released it to Shoreline. Bishay claimed Messiha failed to get the loan and that was why the Alhambra deal fell apart. Bishay admitted he ultimately used Messiha's money to begin a deal to buy the Los Alamitos property. Bishay insisted he did not tell Messiha what he was doing with the $957,000 because "I don't have to . . . It's my money." Contrary to Messiha's testimony, Bishay denied ever going to see Messiha with an unrecorded grant deed for the Alhambra property, or telling him the deal had closed. Bishay did admit there was such a deed in the file Messiha obtained.
Bishay further testified he never agreed to give Messiha a $1.2 million promissory note secured by the Los Alamitos property. He claimed the portion of the handwritten promissory note showing otherwise was not on the note when he last saw it. Bishay insisted he never signed the trust deed securing the note. At about the same time this was all happening, Bishay claimed he began to mistrust Wasef, mainly because Wasef had been taking money out of other projects they were working on together. It was this mistrust that led Bishay to record his $6.5 million TROA lien on the Los Alamitos property. Bishay testified he told Messiha he was doing this, and insisted he kept Messiha informed of all subsequent developments regarding the Los Alamitos property. He consistently denied allowing Messiha to place his own $1.2 million lien on the property.
Bishay admitted he reconveyed the TROA deed to obtain the Bank's loan, but denied he forged Messiha's name on Messiha's reconveyance deed. He claimed not to know who had done so. Bishay acknowledged the signature on Messiha's deed did not appear to be Messiha's. He agreed he had seen the original unsigned Messiha reconveyance deed at some point, but had given it to Wasef to have Messiha sign.
As to any representations he made to the Bank, Bishay denied ever lying to the Bank. He did not recall the Bank ever contacting him to clear up any issues regarding the acquisition and trail of the property from Webb to Shoreline to Los Alamitos Square. He insisted the Bank official's testimony in this regard was "absolutely inaccurate." Bishay also agreed he would have never received the loan without ensuring all other trust deeds were removed from the Los Alamitos property. Throughout his testimony, Bishay implied Wasef was the real malefactor in this entire saga, and Wasef had been the one most active in all matters involving Messiha. Wasef did not testify at trial.
Neither Los Angeles County District Attorney investigators nor Orange County District Attorney investigators could find Wasef, and believed he had left the country. In 2008, Messiha told an investigator Wasef's family had told him Wasef was in Canada.
DISCUSSION
I. Grand Theft Conviction: Sufficient Evidence of Reliance
Bishay first claims insufficient evidence supports his grand theft conviction. Specifically, since the prosecution proceeded on a false pretenses theory of theft, he maintains the prosecution failed to provide substantial evidence the Bank relied on any of his false pretenses. Similarly, he argues the prosecution failed to show his false pretenses were material or important to the Bank's decision to fund the loan. We reject both claims.
Since 1927, theft by false pretenses is a theory of theft, not a distinct crime. "In order to simplify criminal procedure, the Legislature in 1927 consolidated the statutes on larceny, false pretenses and embezzlement in one, under the heading of 'theft.' [Citations.]" (People v. Waxman (1952) 114 Cal.App.2d 399, 405.) "Courts and lawyers are no longer required to puzzle over fine distinctions between the crimes formerly denounced by separate statutes. The crime is complete when the criminal agency appropriates the property of another to his own use without regard to the particular route he chooses to effectuate his wicked purpose." (Id. at pp. 409-410.) As a result, "[i]n charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another." (§ 952.)
Having said that, there are still proof differences between the theories of theft now codified together as section 484. "'The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.' [Citations.]" (People v. Williams (2013) 57 Cal.4th 776, 786.)
"Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft." (§ 484, subd. (a).)
"A theft conviction on the theory of false pretenses requires proof that: (1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation. [Citations.]" (People v. Wooten (1996) 44 Cal.App.4th 1834, 1842 (Wooten).) A false pretense can be implied from a defendant's statements made in conjunction with his or her conduct intended to deceive. (People v. Smith (1984) 155 Cal.App.3d 1103, 1146-1147.) In a false pretenses case, "reliance means that the false representation 'materially influenced' the owner's decision to part with his property; it need not be the sole factor motivating the transfer. [Citation.] A victim does not rely on a false representation if 'there is no causal connection shown between the [representations] alleged to be false' and the transfer of property. [Citations.] Thus, if the defendant makes both true and false statements to the owner, but the false statements are irrelevant to the owner's decision to transfer the property, theft on the theory of false pretense has not been committed. [Citation.] Reliance may be inferred from all the circumstances. [Citation.]" (Wooten, supra, 44 Cal.App.4th at pp. 1842-1843.)
On appeal, Bishay claims the prosecution presented insufficient evidence of reliance. His argument focuses upon: 1) whether Bank personnel relied upon Bishay's statements regarding the value of the property; and 2) whether Bishay's statements in this regard were in fact false. What Bishay fails to acknowledge, however, is the prosecution presented evidence there were multiple false pretenses made by Bishay upon which the bank relied before approving the loan. Bishay's explanation for his assessment of the value of the property was but one.
Bishay also suggests the Bank could and should have done further investigation on its own before funding the loan and its failure to do so "undercuts any reliance on Bishay's representation or omission." He refers us to two inapposite civil tort law cases, and implies it was unreasonable for the Bank to rely on Bishay's fraudulent misrepresentations because, essentially, they should have known better. In other words, it is the Bank's own fault it got fleeced and this somehow "undercuts" its reliance on Bishay's false pretenses. He acknowledges this argument may not be "strictly relevant in criminal fraud cases," but still claims the fact the Bank should have known better somehow breaks the causal connection between Bishay's false pretenses and the Bank's decision to make the loan. We are not persuaded.
It is well settled that a victim need not investigate prior to being victimized, and a failure to do so will not exonerate a thief. (People v. Whight (1995) 36 Cal.App.4th 1143, 1152 (Whight).) "'The party so deceived is none the less defrauded of his money [even though] he might have made an investigation and determined that the representations were false.' [Citation.]" (Id. at pp. 1152-1153.) It is "equally well established that, where the victim does investigate the representation and relies solely on his investigation rather than upon defendant's representation, the crime of theft by false pretenses is not made out. [Citations.]" (Whight, supra, 36 Cal.App.4th at p. 1153, fn. omitted, italics added.) Here, the Bank did obtain its own appraisal of the property to confirm Bishay's valuation, but it also did so because federal law requires an appraisal prior to funding a loan. More importantly, the independent appraisal was also to help assure the Bank it could rely on Bishay's explanation for the history of the property, particularly whether Los Alamitos Square's questionable acquisition price reasonably reflected the true property value.
Thus, the Bank did not rely solely on its independent appraiser's appraisal value in making its decision to fund the loan. Rather, the Bank also relied on Bishay's other false representations and omissions before making its decision.
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.) A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' the jury's verdict. [Citation.]" (Id. at p. 357.)
Looking at the evidence in the light most favorable to the prosecution, we find substantial evidence supports a reasonable inference the Bank would never have made the loan to Bishay without the actual removal of the existing trust deeds. Similarly, we find reasonable an inference the Bank relied upon Bishay's forged reconveyance deed purporting to show such removals. We also find substantial support for an inference the Bank's subsequent loss of its loan funds was caused in part by its reliance on Bishay's false representation the property's title was clean and unencumbered, when in fact a forged reconveyance deed had been recorded. Similarly, substantial evidence supports the jury's verdict Bishay was complicit in the forgery of the fraudulent reconveyance deed.
Finally, we find substantial evidence supports an inference the Bank relied on Bishay's purposefully incomplete, if not deceitful, explanation for the transfer of the property from Webb, through Shoreline, to Los Alamitos Square, as well as Bishay's failure to disclose who really owned the two LLCs. There was no evidence of a "close contact" between Webb and Shoreline, and the transfer from Shoreline to Los Alamitos Square was not an arms-length transaction. Instead, it involved a transfer from one of Bishay's LLCs to another, with no money passing hands, and designed to artificially inflate the property's value. We are confident these material omissions would have made the Bank decline the loan. Instead, it relied on Bishay's incomplete and false representations.
As we observed above, reliance in this context means Bishay's false representations must have materially influenced the Bank's decision to part with its property; it need not be the sole factor motivating that decision. The jury rejected Bishay's version of events by also convicting him of forgery and of recording a forged document. Based upon the evidence before it, the jury could reasonably have concluded the Bank materially relied on Bishay's misrepresentations, and the phony reconveyance deed was but one cause of the Bank's ultimate decision to fund the loan. Bishay's hazy explanation of the property's history, his failure to disclose the actual owners of the involved LLCs, and the fact no cash changed hands in the transfer from Shoreline to Los Alamitos Square were all factors motivating the Bank's loan approval. The jury could reasonably have found any or all these factors material when assessing whether the Bank relied on Bishay's explanations. Bishay's sufficiency of the evidence claim fails.
II. Grand Theft Conviction: Unanimity Instruction
In a somewhat related vein, Bishay's next argument is his grand theft conviction cannot stand because the trial court failed to give the jury a unanimity instruction regarding just what act corroborated which false pretense. We find no such instruction was needed. The jury was not required to agree unanimously on a discrete piece of evidence corroborating one of Bishay's false pretenses, nor even upon the specific false pretense to which it applied.
The trial court instructed the jury with CALCRIM No. 1804 on the elements of theft by false pretense, and on the meaning of "false pretense." The instruction sets out the three basic elements of theft by false pretenses: (1) a false pretense or representation by the defendant; (2) intent to defraud the owner of his or her property; and (3) actual reliance by the owner. (People v. Jackson (1987) 193 Cal.App.3d 393, 401.) Bishay correctly observes additional corroboration may sometimes be required in a theft by false pretense case: "Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained . . . from any person any labor, money, or property, whether real or personal, or valuable thing, the defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof is in writing, subscribed by or in the handwriting of the defendant, or unless the pretense is proven by the testimony of two witnesses, or that of one witness and corroborating circumstances." (§ 532, subd. (b).)
While not common, corroboration requirements also appear in other circumstances. Perhaps tellingly, however, none requires a unanimity instruction. (See, e.g., Cal. Const., art. I, § 18/Pen. Code, §§ 37 [treason], 1111 [accomplice testimony], 1111.5 [in-custody informant testimony], 653f [solicitation of felony], 118 [perjury], and 1108 [abortion and seduction of a minor].)
If a "conviction rests primarily on the testimony of a single witness . . . that the false pretense was made, the making of the pretense must be corroborated. [Citations.] . . . The circumstances connected with the transaction, the entire conduct of the defendant, and his declarations to other persons may be looked to for the corroborative evidence contemplated by the law. [Citations.]' [Citation.]" (People v. Miller (2000) 81 Cal.App.4th 1427, 1441.) Significantly, the necessary corroboration requirement is based on a totality-of-the-circumstances analysis, not by any single isolated act or omission. Moreover, "'the corroborative evidence need only tend to implicate the defendant in the alleged illegal activity, [and] it may be slight and entitled to little weight standing alone. [Citation.]' [Citations.]" (Id. at p. 1442; see also § 532, subd. (b).)
Here, the trial court had a sua sponte duty to instruct on the corroboration requirements of section 532, subdivision (b). (People v. Mason (1973) 34 Cal.App.3d 281, 286 [referencing language in former § 1110, now § 532, subd. (b)].) By giving CALCRIM No. 1804 it did so, because the instruction not only lists the three basic elements of theft by false pretenses, it also informs the jury they cannot convict unless the false pretense element is corroborated in one of three ways:
"[A. The false pretense was accompanied by either a false writing or false token(;/.)] [¶] [OR] [¶] [(A/B). There was a note or memorandum of the pretense signed or handwritten by the defendant(;/.)] [¶] [OR] [¶] [(A/B/C). Testimony from two witnesses or testimony from a single witness along with other evidence supports the conclusion that the defendant made the pretense.]." (CALCRIM No. 1804.) We find significant the use of the disjunctive term "or."
At trial, Bishay's attorney did not request a unanimity instruction as to which of the three ways his client's false pretenses were corroborated, nor how. Nonetheless, even if not requested, a trial court has a duty to give a unanimity instruction whenever the evidence warrants it. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) On appeal, Bishay argues the unanimity instruction, CALCRIM No. 3500, should have been given because the need for unanimity applies equally to the corroboration requirement, insisting the jury "must decide unanimously on the criminal act that served to corroborate the false pretenses."
CALCRIM No. 3500 provides: "The defendant is charged with <insert description of alleged offense> [in Count ___ ] [sometime during the period of ___ to ___ ]. The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
Bishay's authority for the claim the jurors must agree on which exact act (or document, or testimony) corroborates which false pretense, does not actually support such a conclusion and, in fact, has nothing to do with the corroboration element at all. Bishay refers us to People v. Norman (2007) 157 Cal.App.4th 460, but it is inapposite as it involved at least two different mail thefts - one from an apartment complex, and at least one other theft involving numerous pieces of mail found later in defendant's car. In other words, two different acts of theft, and thefts by larceny, not by false pretenses. The defendant was only charged in a single count, however, and it did not specify which mail, i.e., which act of theft, it was based upon. (Id. at pp. 465-466.) A unanimity instruction was required in that case because, with a single theft count, and a generic reference to "'approximately 300 pieces' of mail," the prosecution failed to elect as to which particular act of theft it was alleging the defendant actually committed. (Id. at p. 465.)
Similarly, Bishay's reference to People v. Davis (2005) 36 Cal.4th 510, is also off point because it too involves a single charged criminal act (robbery). There, the evidence revealed two discrete takings, and the theory of theft was not theft by false pretenses. "[T]he omission of the unanimity instruction was prejudicial as to the robbery conviction because we cannot ascertain from the record whether some jurors found defendant guilty of robbery based on the taking of [the murder victim's] rings while others relied solely on defendant's taking of the Honda [in which the victim was a passenger]. On the facts of this case, some jurors may have had a reasonable doubt as to whether [the victim] was still alive when the intent to take her rings was formed while other jurors may have had a doubt about whether [the victim] was in possession of [a third party's Honda]. Under these circumstances, the trial court's failure to give the unanimity instruction was prejudicial. [Citation.]" (Id. at p. 561.)
Here, of course, we have but one charged criminal act, grand theft, from a single victim, the Bank, and a single taking of $3.125 million in a fraudulent loan scheme, prosecuted under a false pretenses theory. There were several parts to that scheme as it developed, and there were several pieces of evidence the prosecution introduced to satisfy the somewhat unique corroboration requirements of theft by false pretenses. Bishay points to no authority a jury must agree which of those pieces is the one it relied upon, to the exclusion of any others, in reaching its ultimate verdict.
In fact, "'[i]t is unnecessary to prove all of the false representations claimed, provided that enough are proven to convince the jury that those shown were material in inducing the complainant to part with his money. [Citations.] Where two false representations are made, the jury is not compelled to find that either was the sole inducing cause. [Citation.]' [Citation.]" (People v. Miller, supra, 81 Cal.App.4th at p. 1444.) We find no reason not to extend this reasoning to the corroboration requirement.
We find support for this conclusion in our review of unanimity requirements involving other crimes where, like here, the focus is on theories of criminal liability as opposed to distinct criminal acts. Thus, in analyzing whether a jury must unanimously agree on one overt act in a conspiracy case, our Supreme Court has held: "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] . . . [¶] On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty. [Citation.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) "The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a 'particular crime' [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Id. at pp. 1134-1135.)
So for a conspiracy prosecution, the question becomes "whether the evidence showed two discrete crimes, i.e., two discrete conspiracies, or merely possible uncertainty on how a defendant is guilty of a particular conspiracy . . . . If only one agreement existed only one conspiracy occurred, whatever the precise overt act or acts may have been. The evidence here showed but one agreement, and hence but one conspiracy—the agreement by defendant and at least one other person . . . to murder [the victim]. Although the jury had to find at least one overt act, whether it was one or another of several possible acts only concerns the way in which the crime was committed, i.e., the theory of the case, not whether discrete crimes were committed. Thus, if the jurors disagreed as to what overt act was committed, and agreed only that an overt act was committed, they would still have unanimously found defendant guilty of a particular conspiracy. No danger exists that some jurors would think she was guilty of one conspiracy and others would think she was guilty of a different one." (Russo, supra, 25 Cal.4th at p. 1135.)
See also People v. Pride (1992) 3 Cal.4th 195, 249-250 [jury must agree on guilt of a specific murder, but need not agree on theory of premeditation vs. felony-murder]; People v. Santamaria (1994) 8 Cal.4th 903, 918-919 [jury need not agree whether defendant was perpetrator or aider and abettor so long as agreed on the specific criminal act]; People v. Briscoe (2001) 92 Cal.App.4th 568, 591 [jury need not agree on which provocative act defendant committed in provocative-act theory of murder case]; People v. Failla (1966) 64 Cal.2d 560, 567-569 [in burglary cases jury need not agree what specific felonious intent defendant possessed at time of entry so long as they do agree on act of entry itself, and that defendant possessed some felonious intent at the time of entry]; cf. People v. Nor Woods (1951) 37 Cal.2d 584, 586 [where defendant committed theft by trick or false pretenses, immaterial whether jury disagreed on "technical pigeonhole" into which the theft fell].
In the case before us, the prosecution presented alternative theories for how Bishay committed the crime of forgery: 1) he made, altered, or forged the reconveyance deed; and/or 2) he passed, or used, or offered to use a false, or altered or forged reconveyance deed. As a result, the jury was instructed with both CALCRIM No. 1904 for the first theory, and CALCRIM No. 1905 for the second. In addition, the trial court also gave the jury CALCRIM No. 1906, which provides: "The defendant is charged in Count 2 with forgery of a Deed of Reconveyance. [¶] The defendant is being prosecuted for forgery under two theories: (1) that the defendant forged the document; and (2) that the defendant passed and/or used the forged document. [¶] Each theory of forgery has different requirements, and I have instructed you on both. [¶] You may not find the defendant guilty of forgery unless all of you agree that the People have proved that the defendant committed forgery under at least one theory. But all of you do not have to agree on the same theory." (Italics added.)
CALCRIM No. 1906 came about after a recommendation from the court in People v. Sutherland (1993) 17 Cal.App.4th 602, 618, fn. 5 (Sutherland). In that forgery case, a unanimity question arose because the evidence tended to show defendant both forged and uttered some of the checks in question. (Id. at pp. 610-611.) The court observed California cases have followed the general rule "where a statute prescribes disparate alternative means by which a single offense may be committed, no unanimity [instruction] is required as to which of the means the defendant employed so long as all the members of the jury are agreed that the defendant has committed the offense as it is defined by the statute. It follows that even though the evidence establishes that the defendant employed two or more of the prescribed alternate means, and the jury disagrees on the manner of the offense, there is no infirmity in the unanimous determination that the defendant is guilty of the charged offense. The courts adhering to this rule explain that the apparent difference in means is actually no more than a difference in the legal theory under which the defendant is found criminally responsible for a single offense; such a difference does not affect the unanimous conclusion the defendant is guilty and therefore does not encroach on the constitutional requirement of unanimity." (Sutherland, supra, 17 Cal.App.4th at p. 613.)
After discussing the rule and its history, the court found that with respect to forgery, "forging and uttering are different legal theories under which a jury may find the defendant guilty of the generic statutory offense of forgery. Thus, no jury unanimity is required as to whether the defendant's conduct falls into either or both categories; in any case, the jury is unanimous that by one means or another, the defendant has committed a single forgery. [Citation.] We conclude that under well-established principles, no unanimity instruction is required as to a single count of forgery involving a single instrument, even though the evidence shows different acts of forging and acts of uttering." (Sutherland, supra, 17 Cal.App.4th at p. 618, fn. omitted.) Hence, CALCRIM No. 1906.
So too here. No unanimity instruction was required for the grand theft count. Bishay was charged with a single count of theft from a single victim: the theft of the loan proceeds from Pacific Premier Bank. How Bishay pulled off his heist, i.e., the underlying theory of his false pretenses theft, did not require jury unanimity. Consequently, the jury did not need to agree on which of Bishay's false pretenses the Bank relied in its funding decisions, nor how Bishay's false pretense or pretenses were corroborated. Bishay was not entitled to a unanimity instruction on the grand theft count, and we reject his claim of error in that regard.
In light of our conclusion, we do not address the parties' arguments on the issue of whether the trial court's failure to give the instruction was prejudicial.
III. Sentencing Error
Finally, Bishay claims the trial court erred by rejecting his argument section 654 requires he can only be punished once for the three crimes he was convicted of. Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." It "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza)), and ensures the defendant's punishment will be commensurate with his or her criminal culpability. (People v. Kramer (2002) 29 Cal.4th 720, 723). A trial court may not impose concurrent sentences precluded by section 654 because the defendant is still subjected to the term of both sentences even though they are served simultaneously. (People v. Jones (2012) 54 Cal.4th 350, 353.) Instead, if a defendant suffers two convictions and punishment for one is barred by section 654, "that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.]" (Deloza, supra, 18 Cal.4th at pp. 591-592.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Generally, if all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507 (Rodriguez).)
Nonetheless, section 654 does not apply where a defendant has separate but simultaneous objectives. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212 (Latimer).) "'The defendant's intent and objective are factual questions for the trial court.'" (People v. Coleman (1989) 48 Cal.3d 112, 162; see also People v. Cleveland (2001) 87 Cal.App.4th 263, 268 [sentencing court, not jury, determines defendant's intent and objective for purposes of § 654].) "'We review the court's determination of [a defendant's] "separate intents" for sufficient evidence in a light most favorable to the judgment, and presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]' [Citation.]" (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.)
Turning to the case before us, at the sentencing hearing the trial court addressed whether section 654 applied:
[The Court]: "The first count of grand theft was aimed to take money from the bank under false pretenses in order to fund his own personal life and eventually he let that property go back to the bank. [¶] The second one was a forgery, the creation of the false document, the fake reconveyance. That was done to take a monetary interest that . . . Messiha had, extinguish it through fraud, so therefore, basically take money from . . . Messiah. [¶] And thirdly, the fraudulent recording was a combination -- it was interesting because it was a false deed of reconveyance that was prepared and then recorded, and the purpose of that was to make sure that the bank would loan the money to the defendant when it did not understand that there was actually an encumbrance on the property. And the reason they did not understand that, nor did they catch it in the appraisal or the underwriting of the title of this particular scenario, is because the reconveyance of the debt was recorded. So it appeared, for all intents and purposes, that the property was unencumbered at the time that the loan was made, so the court does find that as three separate acts with three distinct results."
Bishay was then sentenced to two years on the recording a false or forged document count, eight months consecutive on the grand theft count, and two years concurrent on the forgery count. The court added two separate consecutive terms for the two enhancements. Bishay maintains he should have only been sentenced on one substantive count, and the sentences on the other two substantive counts should have been imposed but stayed under section 654. We agree in part and disagree in part.
We find the eight month consecutive sentence imposed for the grand theft count is not subject to a section 654 limitation by Bishay's two-year sentence on the false recording count. As stated above, if all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (Rodriguez, supra, 47 Cal.4th at p. 507.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334.) However, if more than one objective was involved, multiple punishments may be imposed. (Latimer, supra, 5 Cal.4th at p. 1212.)
In this context, it is important to remember the recording of a fraudulent deed does not convey title to real property. (People v. Sanders (1998) 67 Cal.App.4th 1403, 1413.) As a result, no theft was accomplished by the recording of the forged deed. Similarly, forgery of a victim's signature on a document with the intent to defraud, i.e., count 2, is also not a theft. "'The essential act in all types of theft is taking. If a certain amount of money or property has been taken pursuant to one plan, it is most reasonable to consider the whole plan rather than to differentiate each component part. [Citation.] The real essence of the crime of forgery, however, is not concerned with the end, i.e., what is obtained or taken by the forgery; it has to do with the means, i.e., the act of signing the name of another with intent to defraud and without authority, or of falsely making a document, or of uttering the document with intent to defraud.'" (People v. Drake (1996) 42 Cal.App.4th 592, 596-597.) Although in many cases the goal of a forgery is a theft, forgery occurs regardless of whether a theft is ever actually attempted or accomplished.
It is true Bishay's objective in forging and recording the false reconveyance deed was to use the phony deed as a false pretense to facilitate his loan scam, but it was not his only objective in doing so. Rather, it was his additional intent to use the forged reconveyance to extinguish Messiha's previously recorded interest in the Los Alamitos property. The trial court's finding in this regard is substantially supported by the evidence adduced at trial.
In addition, the "victims" of a forged reconveyance recording are not only the person later directly affected by the forgery, i.e., Messiha, but also include the public at large. "Each false filing creates a separate harm to the person defrauded as well as to the integrity of the public records." (People v. Gangemi (1993) 13 Cal.App.4th 1790, 1801.) Bishay's single violation of section 115, subdivision (a), caused separate harms to Messiha and to the integrity of the public records in the Orange County Recorder's Office. Therefore, separate punishment was commensurate with Bishay's culpability on the grand theft count over and above the forged recording count, and the trial court was not required to stay the term imposed for that count.
Bishay violated section 115, subdivision (a). That section is found in chapter 4 of title 7 of the Penal Code, entitled "Of Crimes Against Public Justice." In contrast, Bishay's violations of sections 487 and 470 are in chapters 5 and 4 of title 13, "Of Crimes Against Property." --------
As to the forged recording count and the forgery count, however, we agree with Bishay the two-year concurrent sentence on the latter must be vacated, and instead imposed and stayed pursuant to section 654. "Section 654 applies where the 'defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself.' [Citation.]" (People v. Mesa (2012) 54 Cal.4th 191, 198.) Put simply, one cannot record a forged deed without having forged a deed, and here Bishay was convicted of both crimes. These two offenses were indivisible for purposes of section 654, and incident to one objective. Section 654 therefore applies.
DISPOSITION
Bishay's sentence on the forgery count is reversed, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. IKOLA, J.