People v. Ghafur

Full title: THE PEOPLE, Plaintiff and Respondent, v. KHADIJAH GHAFUR, Defendant and…

Court: Court of Appeal of California

Date published: Apr 21, 2008

No. F051164 (Cal. Ct. App. Apr. 21, 2008)

Opinion

F051164

4-21-2008

THE PEOPLE, Plaintiff and Respondent, v. KHADIJAH GHAFUR, Defendant and Appellant.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED

Ardaiz

Khadijah Ghafur stands convicted, following a jury trial, of misappropriating public funds (Pen. Code,¹ § 424; counts 1, 3, 5, 7, 9), grand theft (§ 487; counts 2, 4, 6, 8, 10, 11), failing to file a state income tax return (Rev. & Tax. Code, § 19706; count 12), and willfully filing a false return (id., § 19705, subd. (a)(1); count 13). It was further found, with respect to counts 1 through 11, that the pattern of related felony conduct involved the taking of more than $500,000 and $100,000 (§ 186.11, subds. (a)(2) & (a)(3); special allegation Nos. 1 & 2, respectively); that the intentional taking, pursuant to a common scheme or plan, exceeded $50,000 and $150,000 (§ 12022.6, subds. (a)(1) & (a)(2); special allegation Nos. 3 & 4, respectively); and that the amount of the theft exceeded $100,000 (§ 1203.045; special allegation No. 5).

1 All statutory references are to the Penal Code unless otherwise stated.

Ghafur was sentenced to a total unstayed term of 14 years in prison and, insofar as is pertinent to this appeal, ordered to pay victim restitution on count 11 in the amount of $630,000.² She now appeals, raising various claims of error. For the reasons that follow, we will affirm.

2 Ghafur was made jointly and severally liable with codefendant Naazim Hamed, who also was convicted of count 11. Neither Hamed nor a third codefendant, Kehinde Solwazi, is before us on this appeal.

FACTS

I

PROSECUTION EVIDENCE

Overview and General Information

During the mid-1990s, Khadijah Ghafur spearheaded the creation of a nonprofit organization called Heritage Development Corporation (HDC), which was developed as a social service organization for the education of Muslim women and children. Sharon Brooks, who had known Ghafur for several years and who was involved in HDCs development, was named the secretary of HDC on the Statement by Domestic Nonprofit Corporation that was signed by Ghafur, HDCs chief executive officer, and filed on August 5, 1996, with the Secretary of States Office. Brooks was unaware of this fact until her name appeared in an article in The Fresno Bee, several years after her involvement with HDC ended. She never attended any HDC board meetings (nor was she notified of any), nor was she asked to sign or pass any resolutions.

In 1996 or 1997, HDC purchased approximately 440 acres in the foothills of Tulare County, near Miramonte, for around $750,000. Ghafur and Patricia Armstrong, HDCs chief financial officer/treasurer, signed the deed of trust on behalf of HDC. Armstrong did not know whether the propertys purchase was ever put to a vote by HDC, or even whether HDC had a board of directors.

The Miramonte property, which was called Baladullah, came to be home to 30 to 50 families. Concerns about the educational needs of the school-aged children living there led to the development of an independent-study program conducted through Sierra Summit charter school and, ultimately, to creation of Gateway Academy Charter School (Gateway). Gateways charter petition was approved by the governing board of the Fresno Unified School District (FUSD) in October 1998.

Following representations by Gateway to FUSD that the school was not ready to open because facilities were not ready, Gateway first began to have students during the 2000-2001 school year. It started with 200 students at two sites in Fresno. Hamed had students of his own prior to becoming affiliated with Gateway, and he brought a number of them with him to Gateway. Ultimately, he became Gateways chief administrative officer. Ghafur, Gateways superintendent and president of its board of trustees, was his boss.

Hamed recruited other educators to participate in Gateway. One such person was Alfonso Uribe, who became involved with Gateway in spring of 2000, when Hamed asked him to serve as a consultant. Ghafur subsequently offered Uribe the position of chief academic officer/principal, effective at such time as there were enough students to warrant, and a sufficient guarantee of average daily attendance (ADA) funds to support, that position.³ Uribe became Gateways principal in March or April 2001. As Gateway added school sites (many of which were in buildings or homes that had been converted to house students), a second principal, Mr. Shropshire, was hired.

3 Uribe termed the number of students the "lifes blood" of a charter school, because the California Department of Education pays ADA money based on the number of students and their attendance. A school receives so much money per student per year to operate the school, but it is not all received up-front. The amount is predicated on the number of days a student is in attendance. If a school were not part of Gateway, Gateway would not be able to collect ADA funding for that schools students. According to Uribe, although it would not be improper for a school to have a list of potential students in order to plan for future operation, it would be improper to have those students included in the enrolled students for whom the school received money.

In the 2000-2001 academic year, Patricia Cooper-Young ran an independent study program for 50 to 60 students through Sierra Summit charter school. Around the middle of that academic year, she entered into a verbal agreement with Ghafur and Hamed to become part of Gateway. She left Gateway at the end of the school year, following problems collecting her paycheck that were not resolved until after she contacted the County Office of Education. None of her students remained at Gateway, but instead accompanied her to a different charter school.

In June or July 2000, Hamed invited Tomas Gonzalez, of the Oscar Romero Learning Center, to participate in Gateway. In January 2001, Gonzalez met with Ghafur and possibly others from Gateway, and agreed that 60 percent of the ADA generated by the Oscar Romero Learning Center would go toward actually working with the students, and the remaining 40 percent would stay with Gateway. As of June 24, 2001, however, the learning center had only collected approximately 21.8 percent of the ADA that its activities had generated for Gateway. As a result, Tomas Gonzalez submitted a series of memoranda to Al Uribe, who was then principal of the satellite campuses, requesting compensation for the centers work with its students. After learning that nothing was going to happen, Gonzalez sent a letter to Larry Powell, FUSDs coordinator for charter schools, detailing the monetary problems and expressing concern that Gateways board was acting more as a for-profit organization than as a nonprofit one. In part, this concern was based on checks that were going to board members. The relationship with Gateway ended during the summer of 2001.

Around mid-January 2001, Islah Abdul-Hafeez, Gateways compliance director and consultant, began providing bookkeeping services for Gateway when Ghafur advised her that Hamed, a board member, and a third person had submitted an unauthorized implementation grant that resulted in a loss to Gateway of $150,000. Abdul-Hafeez recommended conducting an internal audit to see if there had been any other unauthorized transactions. Abdul-Hafeez never performed the audit because she did not receive the necessary documents, despite requests to Ghafur. Even after this, and despite the fact Abdul-Hafeez repeatedly expressed concern to Ghafur about the quality of Hameds work, Hamed continued to take part in financial matters. There was no blanket prohibition imposed on his involvement in Gateways financial affairs, and he remained in his position as Gateways chief administrative officer.

California uses County Offices of Education to distribute monies to school districts and charter schools. Charter schools can choose either tor be direct funded, meaning they receive the monies from the County Office of Education, or to receive their funds through their sponsoring school district. The first year, Gateway chose to have money come through the school district. The second year, Gateway chose to be direct funded. Between November 30, 2000 and September 6, 2001, FUSD paid Gateway a total of more than $1.6 million in public funds, which consisted of a combination of monies received from the State of California and Gateways share of local property taxes, each of which was based on the ADA that was generated. The first two checks, issued November 30, 2000, and January 2, 2001, were based on the ADA that was projected to be generated by Gateway. In 2001, the disbursements were based on the ADA that was generated in the prior school year, based on actual attendance. In almost every instance, Ghafur came in and Rick Martin, FUSDs director of district financial services, handed the check to her.

Under FUSDs memorandum of understanding, charter schools were required to present a proposed budget to FUSD. They were also required to present projections twice a year, and actuals at the end of the year. The budgets needed to be reasonably accurate. The original budget that Gateway submitted in June for the 2001-2002 school year was similar to that for the 2000-2001 school year and was somewhat less than $2 million. In September 2001, however, there was a meeting about Gateway obtaining a loan. The budget submitted at that time was more than $7 million. Moreover, Gateways unaudited actuals showed a deficit of approximately $1 million, increasing to about $1.3 million.⁴ Thus, Gateway was starting off in a negative position coming into 2001-2002. FUSD would not sign off on any loan without seeing a good plan to know how Gateway was going to make itself solvent again. At some point, FUSD asked for documentation from Gateway on how it would be able to grow to 1,000 ADA when it had been at 250 ADA the prior year. None of the information provided by Gateway allayed FUSDs concerns over Gateways negative number.

4 An "unaudited actual" is a charter schools representation, to the best of its knowledge, of its revenues, expenditures, assets, and liabilities for the prior fiscal year. It is not a projection, meaning, in this instance, that Gateway had spent $1.3 million more than it had taken in during 2000-2001. Part of the deficit could have resulted if Gateway had hired additional teachers for students added after the ADA calculation period, in which case it would have had the expense of the teachers, but would not have received revenue yet for the additional students.

Prior to spring of 2001, charter schools operated fairly independently from their school districts. In spring of 2001, however, charter school laws changed so that school districts were given the task of more closely monitoring the charters for compliance issues such as fire marshal clearances, fingerprint clearances, and the like. As a result, FUSD implemented a compliance review process for all of its charter schools. Working with legal counsel, Dr. Marilyn Shepherd, who took over for Powell as Administrator of Student Supportive Services in August 2001, established a process that entailed a review of the petition and information that the charter schools submitted regarding their educational progress and student performance, as well as a review of records at the charter schools through site visits. The process was to ensure that each charter school was following its petition, as well as following the Education Code regarding required teacher elements.

In October 2001, Shepherd visited Gateways Miramonte site. The physical condition of the school facility concerned her. There were exposed wires hanging in the building, holes in the floor and ceiling, and missing windows. The site apparently did not have fire marshal clearance.

On or about November 20, 2001, as part of the compliance review process, letters were sent to all of FUSDs charter schools, including Gateway, outlining the compliance review process and informing the schools as to what information they needed to submit. Upon receiving no response or documents from Gateway, and after several contacts asking for the information, FUSD requested a meeting with Gateways officials.

On or about December 5, 2001, Shepherd and other FUSD representatives met at FUSD offices with Ghafur, Hamed, Solwazi, Reverend Yang, and Al Uribe on behalf of Gateway. This meeting concerned whether FUSD would sign a letter of good standing that Gateway had requested from the superintendent. The letter was not signed because FUSD had not received the documentation for the compliance review. FUSD wanted documentation that all of Gateways employees had been cleared, through fingerprints, by the Department of Justice; that all of Gateways sites had fire marshal approval; and that Gateways teachers had appropriate credentials. FUSD was also awaiting Gateways financial audit. FUSD stressed that it could not complete the compliance review without the requested documents, and agreed to meet later at Gateways site to go over the documentation.⁵

5 Abdul-Hafeezs duties as compliance director did not extend to issues such as fire marshal and fingerprint clearances.

A further meeting took place on December 18, 2001, at Gateways office on F Street. Shepherd reiterated that FUSD could not even consider a letter of good standing, which was required before a school could obtain bonds or other funding, until it received all of the compliance review information. There were simply too many noncompliance issues that Gateway had failed to address, in addition to which, FUSD had not received the unaudited actuals that had been due in August. When asked for the documents that previously had been requested, Ghafur stated they were at Gateways office on Shields.⁶ Shepherd informed Gateways officials that, if FUSD did not get the documents as requested, it would need to look at possible revocation of Gateways charter. Although only about a month had passed since the compliance review letter had been sent, the requested documents were things Gateway should have had "before opening the door" to students. Moreover, FUSD felt there was imminent danger to the students in light of the absence of a number of fingerprint clearances and fire marshal clearances.

6 Although Gateway had had offices at the Shields location for some time, Shepherd and the other FUSD representatives were asked by Gateway to come to the F Street office.

By letter dated December 21, 2001, Ghafur provided a list of current board members, records of board minutes, a list of employees and other requested employee information, copies of credentials for all staff, a list of all independent contractors, Department of Justice clearance documents, copies of leases, copies of applicable permits, copies of fire marshal clearances, copies of formal complaints, and copies of current liability insurance policies. Despite the lengthy submission, however, problems remained. For instance, board meetings were supposed to be on specific days every month; Gateways were not, and there was nothing to show that any notice had been provided of the changed meetings. Minutes for several board meetings showed that Douglas Hurt, HDCs attorney, attended. According to Hurt, although he became a Gateway board member at Ghafurs request, he did not attend any board meetings, vote as a board member, or authorize expenditures as a board member. Board secretary Terri White, who attended board meetings and kept the minutes, never attended a meeting at which Hurt was present. Although the minutes of several meetings purported to bear her signature, she neither signed those minutes nor authorized anyone to sign them. In addition, the lists of teacher credentials Gateway submitted showed that some had expired, while some were not relevant to what those teachers were teaching. Fingerprint lists showed that not all employees had been fingerprinted, while others had been sent for fingerprint clearance, but were not cleared and so should not have been working.

On or about January 8, 2002, Shepherd caused to be sent to Gateway written notification that the FUSD board would hold a revocation hearing at its meeting on January 16, and detailing the basis for the revocation recommendation and the specific areas of noncompliance. Shepherd requested revocation in part because of student safety issues.⁷ FUSD revoked the charter at the meeting. As of that date, Gateway had not provided all of the documentation that had been requested for compliance, as some of the submitted documents were incomplete and FUSD still had not received Gateways audited financials for the 2000-2001 school year. Although Gateway attempted to present additional documents at the hearing, some of them, including financials and fingerprint clearances, were still incomplete.

7 The law allows immediate revocation if there are safety concerns for students and staff. FUSD still did not have all credentials or complete fire marshal or Department of Justice clearances.

Counts 1 and 2—Payments to Suraiya Razzak

Sometime after February 1995, Ghafur asked Suraiya Razzak, the daughter of a deceased benefactor to philanthropic and charitable organizations, for financial help. Ghafur wanted to obtain a place in Miramonte for battered women and asked for $20,000. After further contact initiated by Ghafur, Razzak agreed to loan her some money. Over time, Razzak loaned Ghafur $132,000.

It was Razzaks understanding that the various monies transferred to Ghafur constituted interest-free loans. Ghafur said repayment would be made from the rent paid by those living on the Miramonte property, and also from the school she wanted to charter there. At first, there was no set time frame for repayment. Eventually, however, Razzak asked Ghafur to begin repaying her. Razzak asked more than once; each time, Ghafur said it would be soon. Eventually, they reached an agreement whereby $5,000 would be repaid each month.

On September 1, 2000, Razzak began receiving periodic cashiers checks from Ghafur that were drawn on Gateways account. On January 3, 2001, Razzak created a letter for Gateways board of directors at the request of Ghafur, who said she wanted to show the letter to the board members in order for the board to repay Razzaks loans, and that Razzak needed to write the letter in order to be repaid. The letter stated, in part, that the loan was interest-free, and had been made to Ghafur for the purpose of research and development, and to cover operational costs until Gateways opening. Ghafur told Razzak the gist of what to write in this part. Although Razzak received no response to the letter, she did start getting her loan payments.⁸ As of trial, Ghafur still owed Razzak close to $55,000.

8 In November 2000, Ghafur asked Abdul-Hafeez to put Gateways minutes and board resolutions into proper format, and Ghafur provided all the minutes and resolutions. Abdul-Hafeez put them into a particular format, but left blank spaces for the signature title of the authorized representative, and the date. When Hosaka and Nagel, an auditing company, began conducting an audit of Gateway in January 2002, Abdul-Hafeez asked Gateway for the minutes and board resolutions. She received from Ghafur, inter alia, a promissory note showing that Ghafur had borrowed $110,000 from Razzak. The note, which Abdul-Hafeez believed was generated for purposes of the audit, was dated September 17, 1998. Abdul-Hafeez also received Gateways board resolution number 20, which was entitled "Payment of Historical Debts." The resolution, an agreement by Gateway to pay historical debts that included $110,000 to Razzak, purported to have been passed and adopted by Gateways board of directors in a meeting held on September 8, 1998. Among the debts listed on the resolution was $2,000 owed to Joy Alexander. According to Alexander, however, the $2,000 consisted of approximately $1,800 she loaned to Ghafur in 1999 to replace a generator at Baladullah, plus $200 she had been required to pay for the cleaning of a car she had rented for Ghafur. Alexander and Ghafur entered into a settlement agreement for repayment of the money in February 2001, and Alexander was paid by a cashiers check, drawn on Gateways account, on February 8, 2001.

Edward Hudson, an investigative auditor for the Department of Justice and a certified fraud examiner, performed a reconstruction analysis of bank accounts maintained for Gateway and for Khadijah and Associates. His analysis showed that the monies paid to Razzak came from public funds.⁹

9 The trial court took judicial notice of the pertinent statutes and instructed the jury that, under the laws of California, charter schools are part of the states public school system; charter school officials are officers of public schools to the same extent as members of other boards of education of public school districts; and a superintendent of a charter school system is, like other public school superintendents and board members, a public official.

Counts 3 and 4—Payments to Italo Stanziale

On February 12, 2001, Italo Stanziale sold Ghafur a triplex, located on Dewitt Avenue in Clovis, for $149,000. Ghafur took title in her name and said she was going to live there. Ghafur gave Stanziale a $10,000 deposit, and Stanziale executed a deed of trust with the understanding that she would pay another $10,000 that September. In addition, escrow instructions called for payments of $1,119 per month. Beginning in June 2001, Stanziale received periodic checks that were signed by Ghafur and drawn on Gateways bank account. In approximately February 2002, Stanziale instituted foreclosure proceedings on the property because Ghafur had been late on several payments.

Stanziale never performed services or had a consultation agreement with Gateway, nor did he receive a check for $1,119 from Gateway for consultation services. At no time did he spell his last name "Sotojicle." When Abdul-Hafeez requested documentation of expenditures during the Hosaka and Nagel audit, however, Ghafur provided an invoice for consultation services in the amount of $1,114, dated July 7, 2001, from Italo Sotojicle to Gateway, which she said was a fee paid for the companys service in securing a guest house for teachers and staff at an in-service training program.

Hudsons financial analysis showed that the monies paid to Stanziale came from public funds.

Counts 5 and 6—Payment to Heritage Development Corporation

On January 30, 2001, Ghafur purchased a $10,000 cashiers check, drawn on Gateways account and made payable to HDC. She purchased another $10,000 cashiers check, drawn on Gateways account and payable to HDC, on April 6, 2001.

An account at Bank of America was established in the name of Heritage Homes to pay the mortgage on Baladullah. On or about January 30, 2001, two cashiers checks in the amount of $10,000 each were drawn on Gateways account and deposited into the Heritage Homes account. On February 5, 2001, a transfer of $10,000 was made from the Heritage Homes account to Salih Ghafur, Ghafurs ex-husband.

Hudsons review of records showed the monies paid to Heritage Homes came from public funds. The transfer to Salih Ghafur came from the public funds in the Heritage Homes account.

Counts 7 and 8—Payment to Cosmopolitan Finance

On September 22, 1999, Cosmopolitan Finance financed a car for Ghafur. The vehicle was repossessed in early June 2000. Cosmopolitan Finance initiated a small claims action for the balance still owed, and obtained a judgment in the amount of $2,500, plus court costs, on February 9, 2001. Cosmopolitan subsequently sought a writ of execution of wages. On June 15, 2001, it received a personal money order in the amount of $1,000, purchased by Ghafur and drawn on Gateways account.

During the Hosaka and Nagel audit, Ghafur asked Abdul-Hafeez about a debt she owed to Cosmopolitan Finance. Abdul-Hafeez told Ghafur that she could take an advance from her paycheck. In the financial and payroll history Ghafur submitted for purposes of the audit, the $1,000 payment to Cosmopolitan Finance was shown as being taken as an advance against Ghafurs payroll.

Hudsons review of records showed that the payment made to Cosmopolitan Finance came from public funds.

Counts 9 and 10—Payment to Fresno Business Services

Fresno Business Services was a bookkeeping and payroll service in Fresno that was operated by Nguib "Nick" Abdallah. At Ghafurs request, Abdallah became Gateways bookkeeper for payroll in approximately September 2001.

On November 5, 2001, Ghafur wrote a check to the Tulare County Tax Collector in the amount of $12,401.57. The check was drawn on the account of Khadijah and Associates. On November 6, 2001, at Ghafurs request that day for a loan, Abdallah wrote her a check from Fresno Business Services line of credit in the amount of $12,500. The money was for the school, which was waiting for funds from the state. Ghafur said Abdallah would be paid within a month. That same day, Ghafur made a deposit in the amount of $13,485 into the account of Khadijah and Associates On December 20, 2001, a cashiers check was drawn on Ghafurs account, payable to Fresno Business Service in the amount of $12,500.¹⁰

10 According to Abdallah, Ghafur gave him a check from Gateway, which he then exchanged for a cashiers check with which he repaid his line of credit.

Hudsons review of records showed that the payment to Fresno Business Service came from public funds.

Count 11—The Short-Term Bond/Note ¹¹

11 Some witnesses referred to the financial transaction as a bond, while others termed it a note. As the phraseology and differences between the two (if any) are not important for purposes of this appeal, we use the terms interchangeably.

Gateways funding, like that of other charter schools, depended in large part on the ADA. Thus, charter schools were required to submit a report to FUSD for each 20-day attendance period. Judi Sommarstrom worked for Larry Powell, FUSDs associate superintendent, and received student enrollment and attendance reports from all of FUSDs charter schools. If Sommarstrom did not receive one in a timely manner from Gateway, which happened on occasion, she contacted Ghafur or Hamed. She did not know, however, who actually compiled the reports.

Habibah Amatussalam was Gateways registrar. Hamed was her direct boss. As registrar, Amatussalam collected applications from parents who wanted their children to attend Gateway, and she made sure the necessary paperwork was in order. This information was kept in Gateways files. In addition, each school site submitted attendance sheets to her once a month. From these, she prepared the student body count and attendance reports, which she gave to Hamed and, if Ghafur asked, to Ghafur.

In spring of 2000, Karl Yoder was asked by people in the financial industry whether he could help structure financing for Gateway.¹² Yoder first contacted either Ghafur or Hamed by telephone, then met with them in Fresno, whereupon he became involved in business transactions with them. During his dealings with Gateway, it was Yoders perception that Ghafur and Hamed were operating Gateway jointly, as a team. This was his perception from general contact with both of them.

12 At the time, Yoder, through his firm Delta Public Finance, was an independent financial advisor to municipal entities, including charter schools. The use of municipal bonds and similar financing by charter schools was then a relatively new field within the larger field of municipal bonds.

In April 2001, Yoder was involved in obtaining a loan for Gateway. This was done by means of a note for $945,000. Wedbush Morgan Securities (Wedbush) underwrote the bond for the funding. At the time, Gateway reported an enrollment of between 500 and 700 students.¹³

13 All told, Yoder was involved in four fundings for Gateway. The first, on or about August 28, 2000, was in the amount of $256,000, and was sold to broker-dealer ML Stern & Company. The April 2001 funding was the second one. The third, on or about September 27, 2001, was in the amount of $630,000, and was also sold to Wedbush. It is this funding that is the subject of count 11. The fourth funding, on or about December 19, 2001, was in the amount of $265,000.

In May or June 2001, Hamed met with Jacquie Canfield, FUSDs fiscal services administrator, regarding ADA funding. Hamed was trying to understand why Gateway was not receiving as much money as he thought it should, since enrollment had grown considerably since the beginning of the 2000-2001 school year. Canfield explained that an ADA payment is for a certain time frame, and Gateways growth had occurred after that period. In addition, once the ADA is established for a charter school, the school will see the same amount of money the following school year until it completes a state report that will be certified the following February. Thus, Gateway would not be receiving any more money for the additional students until approximately February 2002. This news surprised Hamed, and Canfield got the impression he was a little nervous.

Near the time Gateways headquarters moved from its facility on F Street to a site on Shields (which occurred sometime after July 4, 2001), Hamed requested access to the student records and attendance records. Amatussalam saw this as a problem, because she generated the body count reports from the attendance records, and was strict concerning what happened to the documents and who had access to them. The documents detailed which students were prospective students and which students were fully enrolled. Amatussalam did not submit prospective students to FUSD for the purpose of generating ADA funds. The actual student count was submitted by her to Hamed, and it was his responsibility to send that information to FUSD. It was also his responsibility to prepare the ADA reports.

During this time, Amatussalams working roster, which contained information on all students who applied and not just those who were actually enrolled, was sent to FUSD. When FUSD complained, Hamed and Ghafur asked Amatussalam whether she had sent the list. Ultimately, Hameds wife admitted sending it. Hamed told his wife not to send anything and not to touch anything she found on anyones desk. For Amatussalam, this did not explain how Hameds wife came to have the working roster, as it had not been printed or distributed, but instead was kept on Amatussalams computer. In Hameds presence, his wife said that Hamed told her to send the document to FUSD.

Amatussalam reported this incident to Ghafur, who said she would look into it. At some point, Amatussalam paid to have locks put on the file cabinets, and she then kept the student files locked. She also paid for a computer person to come in and network the computers, so that everything that could be accessed without a problem was placed in a shared file, while passwords were assigned to sensitive information. This caused problems, because Hamed wanted access to the files, and staff would not comply. Both Hamed and the facilitator at one of the outside sites asked Amatussalam to unlock her files, but she refused, as documents had been changed, attendance sheets had been altered, and there were files with missing records. Although Amatussalam had no information that Hamed had anything to do with that, it caused her concern when Ghafur announced to the staff of the registration office that Hamed was their immediate supervisor, had the power to hire or fire, and was to receive access to the records as he requested. After the move to the Shields facility, there was no lock on the door to Amatussalams office, and the file cabinets did not lock. The student enrollment list on Amatussalams computer remained passworded, however.

On several occasions in July and August 2001—particularly August—Ghafur and Hamed requested Yoders assistance in obtaining additional funding for Gateway. In September 2001, Yoder became involved in securing further funding for Gateway. During that time, he spoke with both Ghafur and Hamed about Gateways student enrollment numbers. When Yoder received a solicitation from Gateway, formally requesting to borrow an additional amount, he asked that a budget be provided. On September 18, 2001, he received, by means of a facsimile that bore Hameds name on the cover sheet, Gateways projected fiscal year 2001-2002 budget. The cover sheet stated that the budget was based on 1,450 students enrolled in the schools population. Yoder then telephoned Hamed and indicated his desire to see a student list. Yoder requested the enrollment list because this funding, unlike the earlier one, was based on actual enrollment as opposed to projections.¹⁴ Accordingly, Yoder wanted to see names of students to verify they were actually enrolled, and he told this to Hamed.

14 The April 2001 funding was to cover the expected cash flow shortfall in the coming year, based on Gateways projections in April of what its student count would be in the fall. Thus, neither Delta Public Finance (Yoders company) nor Wedbush required actual enrollment numbers, aside from the actual enrollment as of April. In conjunction with the April 2001 funding, Yoder received the projected student numbers from Hamed.
In a memorandum from Ghafur dated June 29, 2001, Yoder received a current student count, as well as projections of student counts for the fall. According to Abdul-Hafeez, Ghafur asked her, in June, to make a growth projection, and Abdul-Hafeez prepared something regarding an increase of 300 students. Ghafur subsequently told her that the report was incorrect, and gave it to Hamed. According to Abdul-Hafeez, who conceded she was paraphrasing, Ghafur told Hamed to do whatever was needed to get the loan from Delta. Ghafur and Hamed were the only two who dealt with Delta Finance.

After Yoder spoke to Hamed, he received, by way of a facsimile bearing Hameds name and what purported to be his signature, an enrollment list showing a count of 1,352 students.¹⁵ According to Amatussalam, who could not say whether the signature actually belonged to Hamed, the list was not accurate. For instance, it included students from the Patricia Young, Oscar Romero, Ezra, and Faaidah Learning Centers, none of which were part of Gateway in September 2001. In addition, some of the pages had cut-and-paste lines or areas where it appeared something had been whited out. Part of the document came from Amatussalams working documents, which she kept on her computer. Thus, some of the student names on the student enrollment list sent to Yoder were the same as those on the student waiting list Amatussalam had created in June 2001, at Ghafurs request, and had sent to Ghafur. In September 2001, Gateway did not have 1,352 students, although actual enrollment was roughly 900. After September 11, the correct figure might have been 701, as two schools were kicked out of their sites.¹⁶

15 In the enrollment list Yoder received in conjunction with the September 2001 funding, there were 1,227 student names, but a confirmed student count of 1,352. Yoders understanding of the difference was the count at the Ezra Learning Center. As the document stated that the student count was confirmed, Yoders understanding was that those students were enrolled, but the names were incomplete.

16 According to enrollment reports submitted by Gateway to FUSD, when Gateway opened in September 2000, it had a total of 167 regular students and 31 independent study students at its various school sites. In May 2001, at the end of the first school year, Gateway had a total of 597 regular students and 83 independent study students at its sites. These were the enrollment numbers; attendance, which was reported to FUSD for generating ADA, was derived from the number of students who actually attended the various schools and was usually lower, given that some enrolled students did not attend on a given day due to illness or other reasons. According to Gateways enrollment reports for the 2001-2002 school year, Gateway had a total of 701 students for the school years first attendance period, which ended September 14, 2001. For that report, Gateway did not submit a number for the Patricia Young and Oscar Romero sites, which were no longer affiliated with Gateway, nor did it report the Ezra Learning Center or Faaidah school as being part of Gateway.

When Yoder received the enrollment list, he noticed there was a shortfall between the number of names and the 1,450 figure contained in the projected budget. The main purpose of the document was to verify the actual enrollment count. Yoder stated this to Hamed and advised him that the enrollment count was crucial for this funding, because enrollment was what determined the money flowing to the school, and the notes could not be repaid without the enrollment that was being shown. When Yoder asked why the 1,352 number did not match the 1,450 figure, Hamed said that 1,450 was the actual student count, but they only had 1,352 names. In addition, Yoder had several conversations, probably on a daily basis, with both Hamed and Ghafur, concerning the need for the funding, the timing of the funding, and the population count. Yoder confirmed that 1,352 was a "hard" number as opposed to a projection.

At no time did Hamed say Gateway actually had 701 students enrolled in September 2001, although, in April 2001, Gateway was projecting an enrollment of 700 for the 2001-2002 fiscal year. At some point during the two-year period in which Yoder dealt with Gateway, however, there was a time when he asked for enrollment figures, and Hamed said he could not provide those, but then called in the registrar and said she could. Yoder was "[r]elatively confident" that this did not happen in September, however, because the enrollment count was very crucial at that time. Yoder was aware that, in September 2001, ADA money was approximately $4,500 per student. Thus, an enrollment of 700 would have generated about $3.5 million. Nevertheless, if Yoder had known Gateways enrollment in September 2001 was approximately 700, and with the April bond issue already outstanding, he would not have recommended the $630,000 funding to Wedbush. Similarly, if Gateway had received the April funding based on a projected enrollment of 700, then solicited a second loan with a showing that enrollment was still at 700, Yoder would not have recommended the second loan. The loan was needed in the first place to cover projected growth and the cost associated with it until the money came in from the state later in the year. If Gateway had not grown over its previous projection, there would have been no solid financial reason why it would have needed additional money.

In September 2001, Yoders relationship to Gateway was that of a financial advisor. As such, his duties entailed assisting Gateway in preparing documentation in a financing package and showing that package to broker dealers and investment banks as potential investors. The relationship did not entail acting on Gateways behalf, but instead acting as intermediary between Gateway and broker/underwriter firms. He contracted with Wedbush in conjunction with the September 2001 funding, and worked primarily with Richard Grossman, a public finance investment banker at Wedbush, in that regard. Yoder passed the student enrollment list on to Wedbush, so Wedbush could use it in its review and decision whether to loan the money.

After Yoder contacted Grossman about this transaction, Grossman surreptitiously visited two of Gateways sites. Although he was not there to verify student numbers, he went to see whether the school existed at the sites named to him by Yoder. At each, he saw either teachers and students in classrooms or students and parents entering and leaving the campus.

Prior to the September 2001 funding, Grossman spoke with Ghafur and Hamed in order to review the documentation. He contacted Hamed because Hamed was the person in charge of finance for Gateway. When Grossman asked Hamed what the student enrollment and ADA were at that time, since, at the time of the April 2001 funding, Gateway had had 700 students and was expanding, Hamed stated the student enrollment number was 1,350. Grossman asked for documentation, which was sent to Yoder. Yoder provided Grossman with the student enrollment list, dated September 18, 2001, and purportedly from Hamed, that showed an enrollment number of 1,352 students. It was explained to Grossman—he believed by Yoder and Hamed—that the list comprised students who were actually enrolled in Gateway, not a prospective population. In turn, Grossman presented this document to Wedbushs underwriters.

In making the decision to fund and finance, Grossman placed equal significance on the September 2001 actual enrollment figure and on the expected increasing student population. If 701 students would have generated approximately $3.5 million in ADA funds, that would have been enough to cover Gateways notes and operation of its school facilities. Based on his calculations, Grossman normally still would have recommended that Wedbush issue the bonds. Grossman believed, however, that reference to 701 students described a hypothetical situation, as, to his knowledge, there were never 701 students enrolled at Gateway in September 2001. Had the true enrollment been 701 students, Grossman would not have recommended the issue to Wedbush, because he was told there were 1,350 students.

The student enrollment list was also received by Robert "Cap" Harlan of Wedbush. The list was provided by Gateways financial advisor, Delta Financial. In this respect, Karl Yoder was the individual from Delta Financial with whom Wedbush dealt with respect to the September 2001 funding. Wedbush relied on the information provided to it. The list contained 1,227 individual student names and showed a total student count of 1,352. The student enrollment was "by far and away" the most important factor Wedbush used in underwriting, since the source of money that schools can receive—hence, the source of money to service the bond issue debt—is based very strongly on the number of students enrolled, due to ADA funding.

Wedbush created a term sheet for the funding, which gave the basic terms of the transaction, the borrower, the interest rate, the amount borrowed, the maturity date, and the basic materials of issue. The term sheet, which was disseminated to Wedbushs brokers and correspondent brokers, contained a brief description of Gateway that was created by Wedbush and stated that Gateways enrollment was approximately 1,350. Wedbush obtained this enrollment figure from Gateways student list, but did not independently try to verify it.¹⁷ If Wedbush had known that Gateway was actually reporting some 700 students, Harlan "seriously doubt[ed]" it would have underwritten the September 2001 offering, as that number of students would not have been enough to service both debt issues and allow the school to pay its operating costs. In short, Wedbush relied "very heavily" on the 1,352 student number in underwriting the loan.¹⁸ Wedbush only cared about confirmed students, not projected increase.

17 Wedbush did not receive anything directly from Gateway, but instead received all communications through Yoder.

18 According to Harlan, Wedbush took the list of 1,272 actual names as being a very accurate list of Gateway students. He did not see a major difference between that number and the 1,352 total. The most important list was the list with the actual students names. That list of 1,272 students was enough to support the underwriting.

In September 2001, Sharon Liska was senior vice-president of investments with Wedbush at its branch office in Anchorage, Alaska. As a broker, she advised clients on their portfolios, what to buy, and where to place their money. In this capacity, she regularly had contact with Cap Harlan, manager of Wedbushs bond department in Los Angeles, with respect to the sale of bonds.

In September 2001, Liska, who had 30 to 40 clients who were interested in short-term investments, was contacted by someone from Wedbushs Los Angeles office about Gateway bonds. She in turn contacted Harlan to question him about the bonds, which were for a term of 13 months and paid an unusually high rate of nine percent taxable interest. Harlan represented to Liska that the Gateway bonds were backed by the $40-million budget of FUSD and double A-rated.¹⁹ Liska did not receive information about Gateways budget; her concern was FUSDs budget, because Gateway was a charter school of FUSD and, to her knowledge, the Gateway bonds were backed by FUSDs budget. With respect to Gateways enrollment, Harlan told Liska that there were 1,500 currently-enrolled students, with expansion to 3,000 to 3,500 within the next few months.²⁰ When she asked him for the exact current enrollment figure, he told her either 1,351 or 1,352. The student enrollment numbers were one of the initial factors on which she relied.²¹

19 Bond issues run from junk bonds to triple A-rated. Anything above triple B is considered investment grade. Typically, double A-rated are the most secure bonds investors can buy without actually having to get an insurance policy on the bond. They are secured for the full faith and credit of the issuing agency, which, as far as Liska was concerned, was FUSD. Wedbush Morgan were the underwriters.
Harlan denied ever telling Liska that the September 2001 funding was double A-rated or backed by FUSDs $40 million budget. The Gateway bonds were non-rated, which, by definition, made them high-risk. The term sheet for the April issue specifically noted the bonds as non-rated and as suitable only for aggressive investors, primarily because Gateway was a start-up operation with no track record. The September 2001 term sheet did not say anything about the bonds being high-risk, although, in Harlans opinion, it should have.

20 Harlan denied ever telling Liska that Gateway had 1,500 students enrolled. Yoder did not recall telling anyone that Gateway had 1,500 students, but admitted he possibly may have done so as an approximation. Yoder had no direct dealings with either the brokers or the investors.

21 Liska did not receive anything in writing from Harlan. It was her normal practice to rely on verbal information in situations like this, where Wedbush was underwriting the bond and it was a "hot issue," i.e., a stock or bond that was expected to sell out within a short time as soon as it hit the market.

As a result of the information she received from Harlan, Liska contacted those among her clients who were looking for investment-grade, short-term bonds. Eight of these clients—including her father and uncle—were involved in the Gateway funding. These people invested a total of $270,000.²² Liska spoke to each of them individually and told them she had a double A-rated, short-term bond issue that was a bridge bond (a type of bond issued if someone—typically, a municipality—is expecting to come into permanent, long-term financing and needs short-term financing in the interim), and that it would mature in 13 months and pay nine percent. She did not recall telling them specifically about the student enrollment numbers; although she would have, had anyone inquired about them, most clients are not interested in knowing what a bond issue is for, but simply want to know what return they will get on their investment. None of Liskas investors requested enrollment figures from her. The investors would have relied on her telling them that there was an increasing demand, which statement would have been made based on the figures Harlan gave her.

22 Liska testified that she had seven clients who invested a total of $260,000. When she was asked to give each individual name and amount, however, there were eight clients who invested a total of $270,000.

Although Ghafurs name was brought up as the person from whom Wedbush got its information, Liska never spoke to anyone with Gateway, nor did anyone from Gateway make any representations directly to her with respect to the bond. She presented her investors with the facts that had been given to her, and they decided whether to invest. She did not undertake independent verification of what Harlan told her. He was head of the bond department; it was the bond departments job to do the research. Liska expected to be able to rely on her bond department for information, and she felt the bond department did a "sloppy" job in this instance and that Wedbushs bond department should never have brought this bond to market because Gateway was already in violation of its charter at the time Wedbush did so. Had she known these were not bridge bonds, were nonrated, and that there was not more backing to them, she would not have bought them. Ultimately, this bond was not satisfied and so the bondholders were never repaid.

In September 2001, Wedbush contacted broker Paul Dixon with an offer involving the Gateway bond, and Dixon worked through Wedbush, with whom he had a longstanding relationship through the securities firm for which he was an independent contractor, on the issue. Upon receiving the call from Wedbush, Dixon wanted to know where the revenues to pay the bond would come from and how they would be handled. In response, he received a term sheet from Wedbush.²³ A term sheet lists the highlights of the bond issue and gives pertinent information, including the amount of the bond, the sources of the security, the maturity of the bond, and the interest rate. The broker can then determine whether he or she wants to sell the bond, based on that information, and will bring up those points to his or her clients in presenting the bond to them.

23 Dixon dealt almost entirely with Norm Ryan with respect to the Gateway bond. At the time, Ryan was head of Wedbushs municipal trading department and was trying to start their municipal bond underwriting department. Dixon did not deal with Cap Harlan with respect to these particular bonds. Although he had heard of Karl Yoder, he did not deal with him, either.

Dixon relied on information contained in the term sheet, specifically the student enrollment number for Gateway, which was given as approximately 1,350. Dixon understood charter schools to receive approximately $5,000 per student from the State of California, with the amount tied to ADA. In addition, when he asked Wedbush to clarify what the term sheet meant, in terms of security, by an intercept mechanism, he was told that the state would make the payment to a bank, which would hold the funds in what amounted to an escrow account, and then payments to the bondholders would be released from that account.²⁴ It was stressed to Dixon that the people at the charter school would have no control over that. In addition, because a lien was placed on all property, funds, and future income (according to the term sheet), if the state never made a payment, Gateway would ultimately be responsible for payment on the bonds.

24 An intercept mechanism was indeed set up in this case, but it was scheduled to go into effect in February 2002, when repayment on the loans was supposed to start.

Based on the term sheet, Dixon contacted several of his clients. He told them that the investment was a school bond issued by a charter school; that the school had a certain number of students and that the state was required to pay a certain amount; and that, based upon the revenues coming in versus the expenditures they showed, it looked like a very solid bond issue. Two agreed it would be a good investment; Karyl Atherton paid $5,000, and Gene and Frances Senger paid $25,000. They relied on the information Dixon gave them, which he received from Wedbush—specifically, that there was an intercept mechanism in place, that the funds were coming from the State of California, and that the state was required to pay the average daily attendance because this was a certified charter school. In terms of the enrollment number, the investors relied on the fact the term sheet said there were approximately 1,350 students in the sense that, had the number been significantly less, Dixon probably would not have offered them the bond, since in his mind, it would have been a degradation of the security from the first bond issue to the second.²⁵ The fact the enrollment numbers had improved significantly since the April 2001 funding, at which time Wedbush had reported that Gateway had nearly 700 students, gave Dixon a degree of confidence that this particular bond was very secure. Dixon based all of his thinking on the current number of students, as that was where the money was coming from. Taking the number of students Gateway had and the amount of funding it would get for those students, compared to its liabilities, this looked like a good bond. If Dixon had been told Gateway had approximately 700 students enrolled at the time of the second offering, it would have meant to him that enrollment was flat or slightly declining and yet the school was coming back for more money. Under such circumstances, he would have decided not to sell the bond.²⁶

25 Dixon, who had previously been involved with Wedbush in Gateways April 2001 funding, did not provide a copy of the term sheet to the investors, as it was not an official document that could be made available to them.

26 According to Gene Senger, Dixon said that the bonds were much safer than the municipal bonds Senger had been buying, and that the money was put up for the students. Senger recalled Dixon saying that Gateway had 700 students at the time, and later it went up to 1,200 students. Senger heard another figure after that, of 1,350. In any event, there were 700 students to start with, and Gateway received $4,500 per student. Senger relied on the student numbers as reported to him by Dixon, the fact there was an intercept mechanism, and Dixons representation that Gateway had had a years experience with the school district already with no trouble. With respect to whether the student enrollment number had grown from April 2001 to September 2001, Senger recalled Dixon saying Gateway was expecting more students; that the school had started with 400 students, had 700 at the time Senger purchased the bond, and expected enrollment to go up to 1,250. Senger, who was 82 years old at the time of trial with a memory he said "isnt the best," admitted he could be mistaken about the number of students Dixon reported to him, and that he heard the 1,350 number from Dixon. However, Senger denied relying on the 1,350 figure, which he believed he got after he had already purchased the bonds. When interviewed by a Department of Justice representative in 2003, he stated that Dixon said Gateway had 700 students enrolled in September 2001.
Dixon had no recollection of telling Senger that, in September 2001, Gateway had 700 students. Since Senger purchased the second bond issue, Dixon believed he would have told him what was in the offering circular, which was the 1,350 number. If Dixon had said anything about 700 students, it would have been in reference to the previous bond issue.

As the underwriter with respect to the September 2001 funding, Wedbush purchased the bond/note from the issuer (Gateway) and resold it to investors. All told, 17 investors purchased the September 2001 bond, through seven different brokers. Gateway was paid the $630,000, less Wedbushs commission and Yoders fee, within a few days after the underwriting closed. None of the bondholders received any of their principle on this funding.

Count 12—2000 Income Tax

Hudsons review of records showed that amounts paid to and for the benefit of Ghafur from Gateways account in 2000 totaled $80,141.99, of which $70,141.99 was shown as constituting salary. In addition, expenses in the amount of $7,915.13 were paid. The Franchise Tax Board was unable to locate any tax documents filed by Ghafur for tax year 2000. In the opinion of Phillip Frailey, a special agent for the Franchise Tax Board, Ghafur accrued taxable income for that year and should have filed a return.

Count 13—2001 Income Tax

Hudsons review of records showed that amounts paid to and for the benefit of Ghafur from Gateways account in 2001 totaled $272,648.16, of which $154,021.56 was shown as constituting salary. In addition, expenses in the amount of $13,500 were paid. Although Ghafur filed a state income tax return for 2001, it was Fraileys opinion that she underreported her taxable income for that year.

II

DEFENSE EVIDENCE ²⁷

27 We have combined the evidence presented by all defendants.

In April 2001, Yoder received a document from either Hamed or Ghafur, stating that Gateway anticipated an increase in enrollment from 550 to 700 students in fiscal year 2001. On or about June 22, 2001, Yoder received a facsimile transmission from Hamed that, unlike the subsequent cover sheet for the list showing a student enrollment of 1,352, did not bear a signature and had a header that included Hameds name and telephone number.²⁸ On or about June 29, 2001, Yoder received a student list from Ghafur that showed a student count of 1,112, including the waiting list for the main campus at Fruit and Dakota. In light of the September 2001 enrollment list, Yoder believed Gateway had had about 550 students at the end of the fiscal year and, as of April, an enrollment of 700 was being projected for fall. That enrollment projection kept rising, however, so that over the summer, it grew to 1,000, and, by September, Gateway actually had slightly more than 1,300 students enrolled. Gateway never reported to Yoder a student enrollment of 701 in September 2001.

28 Yoder was unable to recall whether other facsimiles he received from Hamed also had a header. He denied creating or altering the facsimile cover sheet for the September 2001 enrollment list, creating any student numbers, or making up any documentation to support the September 2001 funding. He denied signing Hameds name to the cover sheet.

Yoder did not recall Hamed ever telling him that the student enrollment in September 2001 was exactly 1,352 students, but he did recall Hamed saying in several conversations that the enrollment count was in the range of 1,300 to 1,500. Yoder was certain that what was conveyed to him was a current, actual student count and not a projection or expectation. When the September list said "student count confirmed" without listing names, Yoder took it to mean that it was not a projection, but instead the numbers were actual students whose names were not available for that list.

In October, Hamed and Ghafur mentioned that September 11 had impacted enrollment. For the December 2001 funding, Yoder did not have an updated student enrollment list and was working off of the list from the September funding. At an in-person meeting at Gateway in December, Yoder talked to both Ghafur and Hamed about the September 2001 student enrollment list. In December 2001, Hamed told Yoder there were 1,352 students. Yoder did not recall an exact conversation with Ghafur, but it was clearly indicated by both Ghafur and Hamed that the student enrollment list essentially was unchanged. They mentioned that a Sunnyvale school had closed, but that enrollment definitely was well above 1,000. They did not tell Yoder they had around 700 students; if they had, he would not have been involved in funding in December 2001. Similarly, if they had said they had 701 students in September 2001, he would not have been involved in that funding, either.

As far as Yoder could tell, Ghafur and Hamed co-ran Gateway. Hamed "did more of the nuts and bolts stuff" while Ghafur did "more of the overall directions," but they seemed to him to be equally responsible for the schools operation. Yoder conceded his perception could have been mistaken.

In 2001, Lewis Wiley was director of accounting and payroll for FUSD. As such, his responsibilities included assisting the charter schools with their unaudited actuals. In terms of Gateway, Wiley was in contact mostly with Hamed at first, and then with Islah Abdul-Hafeez. On October 1, 2001, Wiley inquired of Abdul-Hafeez about some of the numbers in the unaudited actuals Gateway had submitted for the fiscal year ending June 30, 2001. Wiley wanted to know why the unaudited actuals were so different from the budget Gateway had submitted. Abdul-Hafeez explained that enrollment had jumped significantly compared to what had been expected, due to the opening of additional sites and new promotions that had attracted more students. She stated that Gateway had had a student enrollment of 300 in September 2000, a student enrollment of 750 in June 2001, and a student enrollment of 1,450 in September 2001. Wiley did not recall anyone from Gateway other than Abdul-Hafeez stating that Gateway had 1,450 students enrolled in September 2001. The 1,450 number raised concerns for Wiley because it was a large amount of growth. However, it was not necessarily unusual for charter schools to have budget projections that were incorrect or discrepancies between their budgets and unaudited actuals, or to have incorrect projected student enrollment figures.

Rommie Horn began working for Gateway just prior to summer 2001. Horn was athletic director and did some substitute teaching. Hamed introduced Horn to Gateway, but it was Ghafur who hired him. Hamed was his immediate supervisor. It was Horns belief that Ghafur was Hameds boss. Hamed would say that Ghafur was putting pressure on Hamed to make sure Horn was doing what he was supposed to be doing. Also, whenever Horn had a question regarding subjects such as pay, transferring to a different campus, or going into the classroom instead of being athletic director, Hamed would say he (Hamed) had to check with Ghafur to make sure it was all right.

Horn went to Yoders office in Sacramento two or three times. Once, in December 2001, was to deliver Christmas presents. The other time was before the beginning of school, in late August or early September. Ghafur asked him to deliver a large manila envelope, about an inch thick, to Yoder. Although she did not say what the envelope contained, she said it was important and needed to get there immediately.

Hamed presented evidence of his good character for truth, honesty, and integrity. He testified on his own behalf that he first met Ghafur in late 1999, when he was already working as a regional manager for One to One Learning Foundation, a charter school. He assisted in putting together a management team and a team of professionals, including Al Uribe, that facilitated the ultimate launching of Gateway, which, at the time, had been chartered, but which had only an administrative staff.

In 2000, Gateway obtained a $250,000 grant from the state. This was the first money the school received, and it was enough to begin organizing. Hamed, who had years of experience in nonprofit business services, recommended to Ghafur and the personnel staff to engage an accountant to ensure full oversight and control of the reporting of finances received from governmental agencies. An accountant was hired, but strictly for payroll. In approximately July 2000, Gateway obtained its first students.

Hamed formally became Gateways chief administrative officer sometime in 2000. His wife worked as his secretary in a volunteer capacity. Although Hamed had a strong recommendation relationship with Gateways board, he did not have the power to hire and fire.

Hameds duties involved administrative oversight of Gateways sites and departments, and assisting in the day-to-day operations of the organization. With respect to the collection of attendance and student enrollment reports, Hamed had an oversight function in relation to the registrar. Everything was organized to flow through the department of the registrar, and ultimately to Hamed in summary form or whatever specified form he needed to prepare reports for external organizations, primarily FUSD.

Student information was conveyed to outside sources for purposes of ADA funding. For a student to qualify for ADA funding, documents such as birth certificate, immunization record, and acceptable form of identification had to be on file. Based on where Xs were placed on the monthly forms Hamed received from the registrars office, Hamed could tell how many students qualified for ADA funding. Only students who met all requirements and qualified for ADA funding were reported to FUSD. A student could have been enrolled in Gateway and attending school, but would not have been claimed for ADA funding if the necessary documents were not on file.

The dispute between Hamed and Amatussalam arose because Amatussalam could not provide all of the necessary information on some of the students she was reporting as being enrolled. Hamed refused to report the students who were not verified. This type of problem occurred often. The school sites sent monthly attendance reports to Amatussalam, but were also required to send a duplicate copy to Hamed to calculate the ADA they earned. In some instances, the reports Amatussalam gave Hamed at the end of the month did not reconcile with the figures that had been reported to him through the copies sent by the sites. Hamed had to reduce a number of figures Amatussalam reported, causing philosophical problems between them. When Amatussalam complained to Ghafur, Ghafur instructed her to give Hamed access to the records, but Amatussalam never did. She also changed the locks and put a password on her computer. Hamed was Amatussalams supervisor only in theory; in reality, all department heads reported directly to the superintendent (i.e., Ghafur) and the board. Because Amatussalam would not give him access to the records, Hamed could only fulfill his reporting duties through the secondary mechanism of the summary reports she provided to him. She provided a monthly body count, which gave him the number and grade level of enrolled students who had accrued ADA funding for the month. The body count was solely numerical and had no names attached. Although Hamed felt Amatussalam was insubordinate on a number of occasions, he did not recall an incident in which she confronted him about sending a working copy of her enrollment list to FUSD. No one in his office, including his wife, had access to Amatussalams files, and Hamed did not recall any incident in which his wife said he had told her to send the information to FUSD.

On September 19, 2001, Hamed delivered a memorandum to Amatussalam in which he asked for a complete list of students enrolled for the 2001-2002 fiscal year. He made the request because he had heard Abdul-Hafeez tell someone Gateway had 1,450 students and that documents reporting that enrollment were being prepared. Amatussalam complained to Ghafur the day after Hamed made the request. In November, Amatussalam presented Hamed with an enrollment list showing approximately 980 students.

The student list with the attached facsimile cover that purportedly was signed by Hamed, gave "student count confirmed" in response to a process undertaken by the registrars office to have the director of the particular learning center verify whether the parents intended to enroll their children at Gateway. These were not students who were actually enrolled. Similarly, students shown as being on a waiting list were not considered enrolled. Hamed denied compiling the list or extracting it from Amatussalams computer, or seeing it prior to preparation for trial. He denied signing the facsimile cover sheet, that the document bore his actual signature, and transmitting the document to Yoder.

Hamed may have sent facsimiles to Yoder in September 2001, although he did not recall sending any directly. When Abdul-Hafeez became compliance officer, there was a protocol that mandated that all information sent outside the organization by anyone first had to be reviewed by her and passed on to the superintended before it went out. Thus, if Hamed sent a facsimile, it was with authorization from his supervisor. Facsimiles from Hamed bore a header, which the one to Yoder did not have.

Hamed denied ever telling Grossman that Gateway had 1,352 students enrolled in September 2001. Gateways enrollment at that time was 701 students. Hamed presented that information to Yoder in September 2001, in the form of a budget based on an actual enrollment of 550 in June 2001, with a projected enrollment of 700 at the beginning of the new academic year. In turn, Hamed received, on Yoders letterhead, a document showing a bridge loan program for Gateway based on the scenario of an enrollment of 700 for the 2001-2002 fiscal year. Gateways board asked Hamed also to generate budget scenarios based on enrollment of 1,000 and 1,450 students. These were never representations of actual enrollment. Hamed admitted giving Yoder a student enrollment number of 1,450, but only as a budget projection. Hamed denied that Yoder ever said he needed to confirm the student number or asked for a confirmed student number or list of names. Hamed denied giving Yoder an enrollment list of 1,352 students, which included learning centers he knew were no longer part of Gateway.

Hamed understood Delta Financial to have loaned money to Gateway. His perception of Delta was that it either represented a financial institution or an institution that had funds available for bridge loans to charter schools. When he signed the intercept letter, which he believed included the $630,000 loan, he was signing to protect Delta and anyone associated with the lending process. He had no idea of the source of the funds or that private investors would be purchasing bonds from Wedbush. Yoder never explained this; there was no discussion between him and Hamed beyond the fact that Yoder would facilitate acquisition of the funds necessary for the bridge loan.

In January 2001, Ghafur and other members of the executive board wrongly accused Hamed of trying to start his own charter school with someone. Until that time, Hamed had maintained the check register for Gateway. He was told he was not to be involved in Gateways financial affairs, and Ghafur told him he was on probation for 90 days. As he was never told he had been removed from probation, he believed he was still on probation in September 2001. As being placed on probation made him feel despondent and ostracized, he would never have been involved with Ghafur in a scheme to steal money from bondholders. In addition, although he was unsure whether he and Ghafur belonged to the same Muslim sect, they did not have the same Tabliq, meaning the direction in which they focused their attention as far as leadership was concerned. Thus, there were basic ideological differences between them, such that Hamed "[a]bsolutely" would not have been involved in a common plan or scheme with her.

Hamed, who was not a member of Gateways board, attended board meetings when invited by the board to give special reports, including budget. Those sometimes included student enrollment figures as related to budget. Minutes for the October 2, 2001, board meeting, at which Ghafur was present, indicated Gateway had 1,400 students, although the source of that figure was not stated. As chief administrative officer, Hamed had access to enrollment information through the registrars office. However, the minutes did not show Amatussalam or Abdul-Hafeez as attending that meeting. The only attendees who would have been in a position to give that information were Hamed and Ghafur. The number did not come from Hamed.

Until the beginning of this case, Hamed was chairperson of the nine-member board of a mosque in Fresno. He had held this elected position for two years. In his capacity, he had access to hundreds of thousands of dollars that belonged to the mosque. He neither took, nor was ever questioned about taking, money that did not belong to him. In addition, he previously was treasurer of a mosque in San Francisco for over seven years, and never took, nor was questioned about taking, any of that money. Hamed denied ever trying to defraud anyone in this case; in fact, he tried to protect the lenders by signing the intercept letter.

DISCUSSION

I

DENIAL OF BATSON-WHEELER MOTION

Ghafur contends the trial court erred by failing to find a prima facie case of discrimination and, hence, by denying the defense motion pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). We disagree.

"The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her. [Citation.]" (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, "`[a] prosecutors use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against "members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds"—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.] [Citation.]" (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)

"There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.]" (People v. Bonilla (2007) 41 Cal.4th 313, 341.) "The United States Supreme Court has. . . reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. `First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide. . . whether the opponent of the strike has proved purposeful racial discrimination." [Citation.] [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168 (Johnson). The California Supreme Court has "endorsed the same three-part structure of proof for state constitutional claims. [Citations.]" (People v. Bell, supra, 40 Cal.4th at p. 596; Wheeler, supra, 22 Cal.3d at pp. 280-282.)

With these principles in mind, we turn to the motion in this case.

F.C. was one of the first 18 prospective jurors called to the box. In response to the questions asked of all prospective jurors, she stated that she was a stay-at-home mother with two children, ages 18 and 13; lived in east Fresno; her household included her mother, a security guard; and she was not related or close to anyone in law enforcement, and was not acquainted with any witnesses, court employees, attorneys, or other jurors. She had not previously served on a jury. She replied negatively when asked by Hameds attorney whether anything about the length of the case (six to eight weeks) would cause her problems with taking care of her home or children, whether she had seen any media coverage on this case, and whether she knew anything about the Muslim faith. Under questioning by the prosecutor, this occurred:

"MR. ALVAREZ: Mrs. [C.], you stated that youre a stay-at-home mother with two children. What, if any, occupation did you have outside the home?

"[F.C.]: Excuse me?

"MR. ALVAREZ: Your job, did you have a job other than being a stay-at-home mother?

"[F.C.]: No.

"MR. ALVAREZ: You primarily

"[F.C.]: Braid hair."

The prosecutor used his third peremptory challenge to excuse F.C. All defense counsel immediately objected, and the trial court noted and reserved the objection. Outside the presence of the prospective jurors, Mr. Criego, counsel for Ghafur, objected that F.C. was the only apparent African-American in the jury pool, the prosecutor asked her relatively insignificant questions, and F.C. displayed no concerns or characteristics any different from other prospective jurors. Thus, he argued, the People had no challenge to F.C. other than one that was racially motivated. Mr. Moore, counsel for Solwazi, emphasized that F.C. was the only African-American seated in the jury box, she gave no answers showing a bias toward either side or an inability to follow the law, and that all of the defendants were African-American. Mr. Jennings, counsel for Hamed, also noted that all three defendants were African-American, and argued it was unfair to strike the only prospective juror of the same race in the box. This ensued:

"THE COURT: Well, Im a little concerned about that one comment about this being the only apparent African American on the jury. I believe there is at least one other out in the audience.. . .

"MR. JENNINGS: I saw one more too, but there is no guarantee that shes even going to get within the box that we can even voir dire her.

"THE COURT: Well, I think with the number of challenges, theres a pretty good guarantee. But the record should reflect that there is another potential African American in the audience.

"MR. CRIEGO: But I failed to notice that. Im not saying there isnt. I just didnt see one. But I do know. . . even exclusion of one single prospective juror the same race or ethnic background as the defendant automatically constitutes a prima facie case when that juror is the only group member on the panel.. . .

"MR. MOORE: Your Honor, the circumstantial evidence is such for the Court to inquire [sic] the prosecution to make an explanation that shows that the exercise of this peremptory challenge is race neutral.

"THE COURT: Okay. Well, maybe you can add a little more to that. Hes disqualified or at least used his peremptory on two other jurors, one of which was white and one of which was Hispanic.

"MR. MOORE: But if he used them at all, hed have to use them on people other than African Americans cause only one African American was on the panel.

"THE COURT: That doesnt make in itself a showing of prejudice; does it?

"MR. MOORE: Your Honor, what it requires at this point is. . . to call upon the prosecution to. . . make a reasonable showing, a reasonable explanation why they struck this apparently well-qualified African American juror.

"MR. JENNINGS: And likewise, Judge, you know, in the court of law were not concerned just about the actual facts. Were concerned about the appearance of justice. Just on the face of it, there appears to be no reason other than racial issue in terms of her being the only black on the panel.

"THE COURT: And so, lets go back to stage one here. And your request is what, Mr. Criego?

"MR. CRIEGO: My request is for the Court to ask Mr. Alvarez why he struck that particular individual.. . . My understanding is as soon as solitary group is struck, the prosecutor must justify that challenge.

"MR. ALVAREZ: Thats not true. Theres a misunderstanding, Your Honor, but Ill submit it. [¶]. . . [¶]

"THE COURT: Theres no obligation till I find a reasonable inference; right?

"MR. CRIEGO: Thats correct.

"MR. ALVAREZ: Thats Johnson versus California, 125 Supreme Court, 2410.. . . [¶]. . . [¶]

"THE COURT: Based on my review so far. . . I think its clear that the last juror released appeared to be African American as defendants in this action are. However, at this point Im going to find the defendants have failed to make a prima facie case in that I think based on the initial peremptories used there has not been focus on that particular race. And I really dont see any other statement indicating a racial factor involved here at this point. However, that may still be an issue should there be another exclusion on that basis. So deny the request at this point."

The prosecutor ultimately used 15 peremptory challenges toward prospective trial jurors. An African-American woman was seated on the jury that tried the defendants.

Ghafur now says the trial court erred by failing to find a prima facie showing of discrimination with respect to the prosecutors peremptory strike of F.C. "In order to make a prima facie showing, `a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.[<sup>29</sup>] [Citation.] The high court [has] explained that `a defendant satisfies the requirements of Batsons first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. [Citation.] `An "inference" is generally understood to be a "conclusion reached by considering other facts and deducing a logical consequence from them." [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 186; Johnson, supra, 545 U.S. at pp. 168-170 & fn. 4.)

29 African-Americans are a cognizable group for purposes of Batson and Wheeler. (People v. Alvarez (1996) 14 Cal.4th 155, 193.)

"Though proof of a prima facie case may be made from any information in the record available to the trial court, the [California Supreme Court has] mentioned `certain types of evidence that will be relevant for this purpose. Thus the party may show that his [or her] opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He [or she] may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his [or her] opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly,. . . the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he [or she] is, and especially if in addition his [or her] alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the courts attention. [Citations.]" (People v. Bell, supra, 40 Cal.4th at p. 597.)

"[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial courts ruling." (People v. Howard (1992) 1 Cal.4th 1132, 1155.) This standard of review "is consistent with" the United States Supreme Courts reiteration in Johnson "of the applicable rules, which require the defendant to attempt to demonstrate a prima facie case of discrimination based on the `totality of the relevant facts. [Citation.]" (People v. Gray, supra, 37 Cal.4th at p. 186; see Johnson, supra, 545 U.S. at p. 168.) "Because Wheeler motions call upon trial judges personal observations, we view their rulings with `considerable deference on appeal. [Citations.]" (People v. Howard, supra, 1 Cal.4th at p. 1155.)

The California Supreme Court has stated that a finding of no prima facie case will be affirmed "where the record suggests grounds upon which he prosecutor might reasonably have challenged the jurors in question." (People v. Farnam (2003) 28 Cal.4th 107, 135; accord, People v. Guerra (2006) 37 Cal.4th 1067, 1101.) Ghafur essentially argues this standard is outdated, since Johnson makes it clear that a party complaining of racial discrimination during voir dire makes a prima facie case of group bias if his or her allegations lead to the mere inference of discrimination. While we note that the California Supreme Court has employed the standard post-Johnson (see, e.g., People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Guerra, supra, 37 Cal.4th at p. 1101), we need not decide whether Ghafur is correct: "`[W]e have reviewed the record and, like the United States Supreme Court in Johnson. . . [we] are able to apply the high courts standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race. [Citation.]" (People v. Guerra, supra, 37 Cal.4th at p. 1101.)³⁰

30 We would reach the same result were we to agree with Ghafur that the trial courts reference to a reasonable inference implies that court used an impermissibly stringent standard in making its determination. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1105.) In Johnson, the United States Supreme Court abrogated California authorities holding that, under Batson and Wheeler, "strong likelihood" and "reasonable inference" stated the same standard, to wit, that a defendant was required to show it was more likely than not that the other partys peremptory challenges were based on impermissible group bias. (See, e.g., People v. Johnson (2003) 30 Cal.4th 1302, 1313, 1318.) Nevertheless, we do not believe the United States Supreme Court meant to do away with any requirement of reasonableness, inasmuch as it defined "inference" in terms of the deduction, from facts, of a logical consequence. (Johnson, supra, 545 U.S. at p. 168, fn. 4.)

We find no such inference here. Although the establishment of a prima facie case does not depend on the number of prospective jurors challenged (see People v. Moss (1986) 188 Cal.App.3d 268, 277), as "[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude" (People v. Silva (2001) 25 Cal.4th 345, 386, italics added), the requisite showing is not made merely by establishing the excused prospective juror was a member of a cognizable group (People v. Alvarez, supra, 14 Cal.4th at p. 198; United States v. Chinchilla (9th Cir. 1989) 874 F.2d 695, 698; see People v. Hoyos (2007) 41 Cal.4th 872, 901).³¹

31 We do not read the trial courts comments as suggesting it wrongly believed more than one excusal was required before a prima facie case could be established, but instead that the single excusal in this case did not establish a prima facie showing on the facts before it. Assuming the trial court erred in this regard, however, we are able, as we have said, to review the record independently to apply Johnsons standard and resolve the legal question whether the record supports an inference that the prosecutor excused F.C. on the basis of race. (See People v. Bell, supra, 40 Cal.4th at pp. 597-598; People v. Avila, supra, 38 Cal.4th at pp. 553-554.) As we have also said, we find no such inference here.

In the present case, the prosecutor used one of 15 peremptory challenges against an African-American. Such a ratio certainly cannot be considered disproportionate. (See People v. Bell, supra, 40 Cal.4th at p. 598.) Although he struck one of only two African-Americans in the jury pool, "the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible." (Id. at pp. 597-598.) "To be sure, the ultimate issue to be addressed on a Wheeler-Batson motion `is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias. [Citation.] But in drawing an inference of discrimination from the fact one party has excused `most or all members of a cognizable group [citation], a court finding a prima facie case is necessarily relying on an apparent pattern in the partys challenges. Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, including this one, to make a prima facie case after the excusal of only one or two members of a group is very difficult. [Citation.]" (Id. at p. 598, fn. 3.) The fact F.C. was the only African-American prospective juror to have been considered at the time of her removal is not dispositive (People v. Guerra, supra, 37 Cal.4th at p. 1101; see People v. Williams (2006) 40 Cal.4th 287, 311); as we have noted, the trial jury included an African-American, which circumstance, while similarly not conclusive, weighs against the finding of a prima facie case (People v. Stanley (2006) 39 Cal.4th 913, 938, fn. 7; United States v. Chinchilla, supra, 874 F.2d at p. 698, fn. 4).

Moreover, the record discloses reasons other than racial or group bias for a prosecutor to challenge F.C. Her answers, whether curt and abrupt or not, certainly may properly be characterized as short and practically monosyllabic.³² This reasonably could have raised red flags in the prosecutors mind concerning her attitude toward court proceedings in general or this case in particular. More importantly, this was a complicated case. Any prosecutor reasonably could have believed, given the complexity of the evidence, that someone who had never been employed outside the home would not be a desirable juror.³³

32 Ghafur objects to the Peoples references to F.C.s demeanor, as well as to references to alleged unrelated criminal activity by a Baladullah resident and information concerning the Pakistani cleric who was the leader for Ghafurs religious structure. Although F.C.s loquaciousness or lack thereof is reasonably arguable based on matters contained in the record on appeal, her demeanor is not. Additionally, the other challenged references are irrelevant to the issues on appeal and, in large part, based on information not contained in the record before us. Pursuant to California Rules of Court, rule 8.204(a)(1)(C) and (e)(2)(C), we disregard those references.

33 Although we do not undertake comparative analysis at this, the first step in the Batson-Wheeler process (People v. Bonilla, supra, 41 Cal.4th at p. 350), we note that the prosecutor exercised his second peremptory challenge against a prospective juror who had always been a homemaker, and that it appears all trial jurors had at least some employment or business experience.

Ghafur cites Johnson, in which the United States Supreme Court stated: "The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process. [Citation.] The inherent uncertainty present in inquires of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question. [Citation.]" (Johnson, supra, 545 U.S. at p. 172.) However, "[t]he quoted caution against speculation must be read in light of the high courts statement that a prima facie case is established when the `defendant satisfies the requirements of Batsons first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. [Citation.] Once the trial court concludes that the defendant has produced evidence raising an inference of discrimination, the court should not speculate as to the prosecutors reasons— it should inquire of the prosecutor, as the high court directed. But there is still a first step to be taken by the defendant, namely producing evidence from which the trial court may infer `that discrimination has occurred. [Citation.] We have concluded that the evidence alluded to by defendant in the trial court did not support such an inference, nor was such an inference supported by the challenged jurors own statements or anything else in `"the totality of the relevant facts" [citation] that we have seen in our examination of the record .. . ." (People v. Cornwell (2005) 37 Cal.4th 50, 73-74.)

Ghafur and the other defendants having failed to produce evidence sufficient to permit the drawing of an inference that discrimination occurred (Johnson, supra, 545 U.S. at p. 170), the Batson-Wheeler motion was properly denied.

II

SUFFICIENCY OF THE EVIDENCE

Ghafur contends the evidence failed to show she directed, authorized, or participated in the false representation of student enrollment with respect to the September 2001 funding. Accordingly, she argues, the evidence was insufficient to sustain her conviction for grand theft on count 11 and, consequently, the true findings on special allegations 1 (§ 186.11, subd. (a)(2)) and 4 (§ 12022.6, subd. (a)(2)). We disagree.

The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "Where the circumstances support the trier of facts finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendants innocence. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)

The jury here was instructed that count 11 alleged theft by false pretenses. "To establish the commission of the crime of grand theft sounding in false pretenses, the following factors must be proved: (1) The making of a false representation; (2) knowledge that the representation is false with intent to deprive the owner of his property; and (3) proof that the owner was actually defrauded and that he parted with his property in reliance on false representations. [Citations.] Intent to defraud is an essential element of grand theft by false pretenses, but such intention is inferable from the facts. [Citations.] Knowledge may also be inferred. [Citation.] [¶] Proof of a false factual representation need not be by words alone; it may be implied from conduct; it may be made either expressly or by implication; the form of the words in which the pretense is couched is immaterial; if the words or conduct are intended to create the impression that defendant is making a representation as to a present fact, the pretense is within the statute. [Citations.]" (People v. Brady (1969) 275 Cal.App.2d 984, 996; see also People v. Reed (1961) 190 Cal.App.2d 344, 353.)

A defendant is guilty of theft by false pretenses if he or she made a false representation or intentionally caused one to be made. (People v. Singh (1995) 37 Cal.App.4th 1343, 1368.) It is not enough that the false representation was made by the defendants agent: "The civil doctrine of respondeat superior is not carried into the criminal law so that the mere fact of agency is alone sufficient to impose criminal liability upon the principal [citations]" (People v. Jarvis (1933) 135 Cal.App. 288, 294-295); moreover, "[w]hile false pretenses may be made to an agent of the person defrauded, yet when made by an agent they must be directly authorized or consented to in order to hold the principal, for authority to do a criminal act will not be presumed. [Citation.]" (People v. Green (1913) 22 Cal.App. 45, 50.) "A principal, in order to be held criminally liable, must be shown to have knowingly and intentionally aided, advised, or encouraged the criminal act committed by the agent." (People v. Doble (1928) 203 Cal. 510, 515; see § 31 [all persons concerned in commission of crime, whether they directly commit criminal act or aid and abet commission, are principals in crime so committed]; People v. Beeman (1984) 35 Cal.3d 547, 561 [person aids & abets commission of crime when he or she, acting with knowledge of perpetrators unlawful purpose & intent or purpose of committing, encouraging, or facilitating commission of offense, by act or advice aids, promotes, encourages, or instigates commission of crime].)

We have set out the evidence adduced at trial, ante, and need not reexamine it in detail here. No direct evidence was presented that Ghafur was involved in Hameds falsely representing, for purposes of obtaining the September 2001 funding, that Gateway had an enrollment of 1,352 students. There was ample circumstantial evidence, however, from which a rational trier of fact could have concluded she was knowingly and purposely involved, and hence was criminally liable (§ 31).

For instance, if Judi Sommarstrom had a budgetary problem with Gateway, or trouble getting a student or attendance record from a certain site, she would go to Ghafur or Hamed, and dealt approximately evenly with each. Although Sommarstrom had the impression, from working with Gateway, that Ghafur and Hamed were equal, she knew that ultimately, Ghafur was first in command. Sommarstrom did not know who composed the attendance lists for Gateway, but Ghafur sometimes delivered them to FUSD.

According to Habibah Amatussalam, after she complained to Ghafur about Hamed, Ghafur announced to the staff of the registrars office that Hamed was their supervisor, with the power to hire or fire, and that he was to receive access to their records. Hamed never told Amatussalam why he wanted access to the records.

According to Islah Abdul-Hafeez, in June 2001, Ghafur had her prepare budget projections based on projected student increase. Abdul-Hafeez subsequently received a telephone call from Ghafur, telling her that Abdul-Hafeezs report was incorrect. Abdul-Hafeezs understanding was that her report was "axed," and Ghafur gave the assignment to Hamed. Ghafur told Hamed to do whatever was needed to get the loan from Delta. Ghafur allowed Hamed to retain his position with Gateway even after Abdul-Hafeez expressed concerns and suggestions about his performance.

In late June 2001, after the April 2001 funding, Ghafur sent Karl Yoder what her cover memorandum termed the current student count for the 2001-2002 school year, with a waiting list for the main campus and student counts for new sites. The attached lists, which were shown as being confirmed student projections, gave a count of 1,112 students. During July and August—mostly in August—both Ghafur and Hamed made several requests to Yoder about obtaining funding, following which Yoder had conversations with Hamed about the number of students Gateway had. Hamed then provided a budget based on 1,450 students, and, when Yoder asked for the names of actual students and not a projection, a list showing an enrollment count and verification of 1,352 students. During this time, Yoder had several conversations— probably on a daily basis—with both Hamed and Ghafur, concerning the need for the funding, the timing of the funding, and about the population count. Although he did not recall a specific conversation with Ghafur about needing the actual student numbers as opposed to a projection, it was an extremely important point because the enrollment count would be critical in repayment of the notes. It was Yoders impression that Ghafur and Hamed were operating Gateway as a joint management team. In December 2001, both Hamed and Ghafur "clearly indicated" to Yoder that Gateways student enrollment list was essentially unchanged from September and that, although a school in Sunnyvale had closed, enrollment was definitely well above 1,000.

In September 2001, Richard Grossman of Wedbush telephoned Gateway as part of his "due diligence" with respect to the September 2001 funding. He called to review the documentation for the funding, and spoke to Ghafur and Hamed.

On October 1, 2001, Lewis Wiley of FUSD received a facsimile from Abdul-Hafeez, in response to his questions about Gateways unaudited actuals, stating that Gateways September 2001 enrollment was 1,450 students. The facsimile indicated that Ghafur was sent a copy. Gateways board minutes for October 2, 2001, showed a reference to Gateway having 1,400 students. Ghafur attended that meeting. Of those who attended that meeting, only Ghafur and Hamed would have been in a position to give that information.

According to Rommie Horn, who worked for Gateway in September 2001, Ghafur was Hameds boss. Whenever Horn had a question about something, Hamed would have to check with Ghafur. In late August or early September 2001, Ghafur had Horn deliver a very important manila envelope to Karl Yoders office in Sacramento.

Hamed denied sending Yoder the student list showing an enrollment of 1,352 students. When he sent a facsimile, however, it would have been with the authorization of his superior. He was subject to a protocol mandating that all information going outside the organization had to first be reviewed by Abdul-Hafeez and then go on to the superintendent before it went out. Ghafur was Gateways superintendent and Hameds superior. Hamed followed this policy "[t]o the letter of law."

From the foregoing evidence, a rational trier of fact could have inferred that Hamed inflated the student enrollment figures, for purposes of securing the September 2001 funding, with Ghafurs knowledge and at her behest. This is especially true since jurors reasonably could have concluded Hamed had no personal motive for misrepresenting Gateways student enrollment in order to obtain funding, aside from the motive all Gateway employees presumably had—to keep the school going so that they could continue to receive their salaries. Ghafur, by contrast, had the motive of obtaining more funding so that she could continue to use the schools money as her own personal slush fund, something she had been doing well in advance of the September 2001 funding.³⁴

34 That jurors were instructed to consider each count separately does not mean they could not consider Ghafurs overall motive and scheme; indeed, they were specifically instructed that they could consider motive as tending to show guilt. We note that, in conjunction with various special allegations, they found a pattern of related felony conduct and a common scheme or plan.

In light of all the evidence, including the evidence of Hameds good character, a rational trier of fact could have concluded Hamed would not have sent the bogus student enrollment list without Ghafurs knowledge and direction. Accordingly, the evidence was sufficient to sustain Ghafurs conviction on count 11. This being the case, her challenge to the related special allegations necessarily also fails.

III

FAILURE TO DEFINE "COMMON SCHEME OR PLAN"

Ghafur contends the trial court erred by failing to give an instruction defining "common scheme or plan" as that phrase was used in conjunction with the section 12022.6 allegations (special allegation Nos. 3 & 4). We conclude no definition was needed; even assuming otherwise, any error was manifestly harmless.

With respect to counts 1 through 11, the first amended information alleged that, pursuant to a common scheme or plan, Ghafur took funds and property of a value exceeding $50,000 (§ 12022.6, subd. (a)(1); special allegation No. 3) and of a value exceeding $150,000 (§ 12022.6, subd. (a)(2); special allegation No. 4).³⁵ During the portion of the jury instruction conference that took place on the record, the trial court observed that there had been an objection to the lack of instruction about common scheme or plan. The prosecutor noted that it was not an element of the charged offenses, but instead of the section 12022.6 enhancement allegations, and argued that the court had no duty to instruct on those terms because they were commonly understood by those familiar with the English language. The prosecutor stated: "Common scheme or plan really comes down to is the common victim as to the embezzlement count which is the Gateway. And the plan is that there was the use of Gateways bank account as a personal slush fund for extinguishing the debts and obligations of someone who was in control of the funds and for nonschool-related purposes." Counsel for Ghafur and Hamed conceded they had found no cases directly on point, but asserted that the prosecution had not presented the notion of common scheme or plan in terms of Gateway as the victim, but instead had elicited testimony that Ghafur and Hamed acted as a team in operating Gateway and had suggested that this was the common plan or scheme between them. Mr. Jennings noted that he had asked the prosecutor the meaning of common scheme or plan, and the prosecutors definition had been different than his own, in addition to which, the court had given still another definition; accordingly, the phrase was not a matter of common understanding.

35 At all times pertinent, section 12022.6 provided, in relevant part: "(a) When any person takes. . . any property in the commission. . . of a felony, with the intent to cause that taking,. . ., the court shall impose an additional term as follows: [¶] (1) If the loss exceeds fifty thousand dollars ($50,000), the court, in addition and consecutive to the punishment prescribed for the felony. . . of which the defendant has been convicted, shall impose an additional term of one year. [¶] (2) If the loss exceeds on hundred fifty thousand dollars ($150,000), the court, in addition and consecutive to the punishment prescribed for the felony. . . of which the defendant has been convicted, shall impose an additional term of two years. [¶]. . . [¶] (b) In any accusatory pleading involving multiple charges of taking,. . ., the additional terms provided in this section may be imposed if the aggregate losses to the victims from all felonies exceed the amounts specified in this section and arise from a common scheme or plan.. . . [¶] (c) The additional terms provided in this section shall not be imposed unless the facts of the taking. . . in excess of the amounts provided in this section are charged in the accusatory pleading and admitted or found to be true by the trier of fact." (Italics added.)
Effective January 1, 2008, subdivisions (a)(1) and (a)(2) of the statute were amended to provide for thresholds of $65,000 and $200,000, respectively. (Stats. 2007, ch. 420, § 1.) All references to section 12022.6 in this opinion are to the statute as it existed prior to this amendment.

The court declined to define the phrase, but ruled it could be argued both ways. It subsequently instructed the jury:

"And Special Allegation Number 3. If you find Ms. Ghafur guilty of any of the crimes charged in counts one through eleven, you must then decide whether the People have proved the additional allegation that the value of the property taken was more than $50,000.

"To prove this allegation, the People must prove that, one, in the commission of the crime, the defendant took property; two,. . . when the defendant acted, she intended to take the property; and, three, the loss caused by the defendants taking the property was greater than $50,000."

. . . If you find Ms. Ghafur guilty of more than one crime, you may add together the loss from each crime to determine whether the total loss from all the crimes was more than $50,000. If the People prove that, (a), Ms. Ghafur intended to and did take property in each crime, and (b), each crime arose from a common scheme or plan."

The same instruction was given with respect to special allegation No. 4, except that the amount of loss was changed to $150,000.

The prosecutor argued, with respect to Ghafur, that the losses from each crime could be added together to reach the threshold dollar amount if her crimes arose from a common scheme or plan. He argued that Gateway was the victim in counts 2, 4, 6, 8, and 10, and that Ghafur used Gateways money to pay off her personal debts and obligations with respect to counts 1, 3, 5, 7, and 9. Ghafurs attorney described the prosecutors argument as being that, because someone was operating as Gateways chief financial officer or was in charge of academics along with Ghafur, they engaged in a plan to deprive Gateway. Counsel gave an example of two people planning to rob a bank and split the loot, and argued there was no showing of any common scheme or plan in the present case, but simply individual takings by Ghafur. The prosecutor responded that Gateway was a victim in the first 10 charges, and that there was a common scheme or plan in that Gateway was being used as a vehicle to funnel money through to pay Ghafurs personal debts and obligations.

During deliberations, the jury sought clarification concerning whether they were to consider the special allegations separately and, if they found special allegation No. 4 to be true, whether they were still required to make a finding on special allegation No. 3. They did not seek any clarification or guidance with respect to the meaning of "common scheme or plan." Nevertheless, Ghafur contends the trial court committed reversible error by refusing the request to define the phrase, as the term is one that has a distinct legal meaning and, given the different definitions proffered by the attorneys during argument to the jury, we cannot say whether jurors agreed on a single definition, let alone the correct one.

"In a criminal case, a trial court has a duty to instruct the jury on `"`"the general principles of law relevant to the issues raised by the evidence."" [Citation.] The `general principles of law governing the case are those principles connected with the evidence and which are necessary for the jurys understanding of the case. [Citations.] As to pertinent matters falling outside the definition of a `general principle of law governing the case, it is `defendants obligation to request any clarifying or amplifying instruction. [Citation.]

". . . `[T]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language. [Citations.]

"The rule to be applied in determining whether the meaning of a statute is adequately conveyed by its express terms is well settled. When a word or phrase `"is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request." [Citations.] A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.] Thus,. . ., terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance. [Citation.]" (People v. Estrada (1995) 11 Cal.4th 568, 574-575; see also People v. Forbes (1996) 42 Cal.App.4th 599, 604-605; People v. Shoals (1992) 8 Cal.App.4th 475, 489.)

To summarize, a trial courts obligation to define words or phrases "comes into play when a statutory term `does not have a plain, unambiguous meaning, has a `particular and restricted meaning [citation], or has a technical meaning peculiar to the law or an area of law [citation]." (People v. Roberge (2003) 29 Cal.4th 979, 988.) That application of the words to a given set of facts may prove uncertain, does not mean the words themselves require explication. (People v. Rowland (1992) 4 Cal.4th 238, 271.) Likewise, that the word or phrase has more than one meaning, or that the parties may be unable to agree on a definition, does not mean the term has a technical meaning peculiar to the law on which the court must instruct. (People v. Dunkle (2005) 36 Cal.4th 861, 895; People v. Forbes, supra, 42 Cal.App.4th at pp. 605, 606.)

Based on People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt) and other cases addressing the admission of uncharged acts under Evidence Code section 1101, Ghafur argues that "common scheme or plan" has a distinct, technical meaning. Ewoldt states: "[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate `not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Citation.] `[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity. [Citation.] [¶] "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.. . . [E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.. . . [T]he plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]" (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)

We do not agree that Ewoldt and similar cases demonstrate "common scheme or plan" has a legal meaning that differs from the meaning of the phrase in nonlegal parlance. Websters Third New International Dictionary (1986) page 458 defines "common" as, inter alia, "1 a: of or relating to a community at large (as a family unit, social group, tribe, political organization, or alliance): generally shared or participated in by individuals of a community: not limited to one person or special group. . . 2 a: held, enjoyed, experienced, or participated in equally by a number of individuals: possessed or manifested by more than one individual <a ~ attribute> <a ~ characteristic> .. . ." We see no difference between the dictionary meaning and the usage of the term in Ewoldt. The touchstone is whether the acts are pursuant to a plan, or merely random or spontaneous. The phrase "common scheme or plan," as used in everyday, nonlegal parlance, conveys this meaning.

Moreover, even if we were to agree that "common scheme or plan" has a technical meaning peculiar to the law insofar as Evidence Code section 1101 is concerned, it would not automatically follow that the same would hold true of the phrase as it is used in section 12022.6. Broadly speaking, the purpose of Evidence Code section 1101 is to prohibit the admission of certain evidence except under limited exceptions. By contrast, the purpose of section 12022.6 is to deter large-scale crime. (People v. Bowman (1989) 210 Cal.App.3d 443, 447.) "To determine whether a term in an instruction has. . . a technical legal meaning, one must look to the statutory language defining the alleged crime. Though the statute is to be construed `"as favorably to the defendant as its language and the circumstances of its application may reasonably permit" [citation], this rule `"does not `require[] that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope—nor does any rule require that the act be given the "narrowest meaning." It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislative body]." [Citations.] [Citation.]" (People v. McCleod (1997) 55 Cal.App.4th 1205, 1216, quoting People v. Forbes, supra, 42 Cal.App.4th at pp. 603-604.) That the term may have been defined, whether in statutory or case authority, is not dispositive: "The issue is not whether the terms have been defined, but how." (People v. Richie (1994) 28 Cal.App.4th 1347, 1362; see People v. Frederick (2006) 142 Cal.App.4th 400,419-420.)

We see nothing in the language or intent of section 12022.6 to remotely suggest the Legislature used "common scheme or plan" in a technical sense such that a jury would have difficult understanding the enhancement allegation without guidance. (See People v. Rodriguez (2002) 28 Cal.4th 543, 547.) It is obvious from the history of section 12022.6 that the Legislature intended to punish multiple takings, committed pursuant to an overall plan or scheme, more harshly than multiple takings committed randomly or spontaneously.³⁶ The ordinary meaning of the phrase conveys this intent and adequately states the requirement.

36 As originally enacted, the statute contained no provisions concerning aggregated losses. In response to People v. Bowman, supra, 210 Cal.App.3d 443, in which the Court of Appeal held the statute illogically did not permit a court to aggregate the value of all property taken pursuant to multiple felonies and urged the Legislature to amend the statute (id. at p. 447), section 12022.6 was amended to permit such aggregation (see Assem. Com. on Pub. Safety, Rep. on Assem. Bill No. 939 (1991-1992 Reg. Sess.) Apr. 23, 1991). It was subsequently amended to permit aggregation of losses arising from a common scheme or plan. (See Historical and Statutory Notes, 51D Wests Ann. Pen. Code (2000 ed.) foll. § 12022.6, pp. 185-186.)

We recognize that, in the present case, Ghafur and Hamed requested a definitional instruction; thus, Ghafur is not arguing the trial court was under a sua sponte obligation to define "common scheme or plan."³⁷ "As the California Supreme Court has held, however, a trial court is not required to instruct on the meaning of a commonly understood term and does not err in refusing a requested instruction which attempts to define such a word or phrase. (People v. Malone (1988) 47 Cal.3d 1, 54-55.)" (People v. Forbes, supra, 42 Cal.App.4th at p. 606.) As there was no indication the jury here was confused or needed additional guidance concerning the meaning of the phrase, the trial court did not err by declining to provide a definition. (Compare People v. Navarette (2003) 30 Cal.4th 458, 502-503 ["immediate presence," for purposes of robbery, sufficiently clear in context of case so as to require no further clarification] with People v. Hayes (1990) 52 Cal.3d 577, 626 [trial court undertook to define "immediate presence" when jury requested clarification of meaning during deliberations]; see People v. Hughes (2002) 27 Cal.4th 287, 379.)

37 Insofar as we can ascertain, Ghafur and Hamed sought a definition that would have required a finding that both of them were involved in the common plan or scheme. In our view, such a definition incorrectly interprets section 12022.6. If "common scheme or plan" were to be defined in a way that required more than one person to be involved in the takings, it would lead to the absurd result that a person who, by him-or herself, caused great financial losses to a number of victims would escape the additional punishment provided for by the statute simply because he or she acted alone. We will not interpret a statute in a way that produces absurd results that cannot possibly have been intended by the Legislature. (People v. Elliot (2005) 37 Cal.4th 453, 478.)

Finally, even if we were to conclude the trial court erred, we would find no prejudice under any standard. "A jury instruction that omits an element of an offense requires reversal unless the error was harmless beyond a reasonable doubt. [Citation.]" (People v. Nicholson (2004) 123 Cal.App.4th 823, 833; accord, People v. Sengpadychith (2001) 26 Cal.4th 316, 327 [applying standard of federal constitutional error to failure to instruct on element of enhancement that increases sentence for underlying crime beyond statutory maximum].) "However, if no rational jury could have found the missing element unproven, the error is harmless beyond a reasonable doubt. [Citation.]" (Nicholson, supra, at p. 833.)

Such is the situation here. Based on the record before us, we conclude that, had the trial court instructed the jury as to the correct definition of "common scheme or plan," no rational juror could have found Ghafur guilty of all 11 counts and not concluded the offenses arose from such a scheme or plan, viz., obtaining money for Gateway and then using that money for her own personal debts and obligations. (See People v. Nicholson, supra, 123 Cal.App.4th at p. 834.)³⁸ The evidence conclusively establishes that, if Ghafur committed the offenses as the jury found, she did so pursuant to a common scheme or plan. (See People v. Ryan (1999) 76 Cal.App.4th 1304, 1321; People v. Smith (1987) 188 Cal.App.3d 1495, 1514, overruled on other grounds in People v. Davis (1994) 7 Cal.4th 797, 805.)

38 That the prosecutor did not include count 11 in his argument concerning common scheme or plan does not alter this fact.

DISPOSITION

The judgment is affirmed.

We concur:

Harris, J.

Dawson, J.