People v. Moore

THE PEOPLE, Plaintiff and Respondent, v. TARA VIRGINIA MOORE, Defendant and Appellant.

D066952

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

June 30, 2016

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCD236506)

APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed in part, reversed in part, and remanded for resentencing.

Steven M. Schneebaum, P.C., Steven M. Schneebaum and Arin Melissa Brenner; The Law Offices of Nicholas J. Moore and Nicholas Moore for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Tara Virginia Moore guilty of grand theft and embezzlement from Berkley and Anderson (Berkley/Anderson counts); grand theft of military survivor benefits from the Department of Defense (military benefits count); financial elder abuse and grand theft from Dr. Dragica Markovich (Dr. Markovich) (Markovich counts); and forgery of a brokerage account statement, all felonies. (Pen. Code, §§ 487, subd. (a), 508, 368, subd. (d), 470, subd. (d).)¹ The jury returned true findings of aggregate loss on the counts involving Anderson, military benefits, and Dr. Markovich (§ 12022.6, subd. (a)(1)-(3)), and sustained the aggravated white collar criminal enhancement (§ 186.11, subd. (a)(2)).²

On November 7, 2014, the trial court sentenced Moore to a total term of 15 years eight months, as follows: count 1 (Berkley grand theft), eight months; count 2 (Berkley embezzlement), two years, stayed; count 3 (Anderson grand theft), eight months, plus a sentencing enhancement of eight months under section 12022.6, subd. (a)(2) (aggregate loss); count 4 (Anderson embezzlement), two years, stayed under section 654, plus a two-year enhancement for aggregate loss, also stayed; count 6 (grand theft of federal military benefits), eight months plus a four-month enhancement for aggregate loss; count 7 (Markovich financial elder abuse), four years plus a three-year sentencing enhancementfor aggregate loss; count 8 (Markovich grand theft), two years, stayed, plus a three-year aggregate loss enhancement, also stayed; and count 10 (forgery), eight months. The trial court ordered all sentences to run consecutively and imposed an additional consecutive five-year term pursuant to the aggravated white collar criminal enhancement. The trial court ordered Moore to pay restitution to her victims, and imposed various fines and fees.

Moore argues the trial court improperly permitted the unrelated offenses to be consolidated for trial, which led the jury to believe she had a criminal disposition. She contends the trial court further erred when it allowed the prosecution to present character evidence, including evidence of uncharged crimes, thereby creating a substantial danger of undue prejudice against her.

With respect to the Berkley/Anderson counts, Moore contends the trial court violated her constitutional right to compulsory process when it denied her request to admit a witness's conditional examination in evidence. She argues the prosecutor committed misconduct by arresting that witness and facilitating his deportation to prevent him from testifying at trial. Moore asserts the trial court erred when it did not exclude documents seized as a result of a defective search warrant. She argues grand theft (§ 487) and embezzlement (§ 508) are not separate offenses.

With respect to the allegation of grand theft of military survivor benefits, Moore contends the state does not have jurisdiction to adjudicate theft of federal military benefits. Alternatively, she argues the federal government is not a "person" under state law, and therefore a charge of grand theft does not apply.

As to the Markovich counts, Moore argues the admission into evidence of the videotaped conditional examinations of her former husband, Commander Bogoljub (Bobby) Markovich (Cdr. Markovich), and his mother, Dr. Markovich, deprived her of her Sixth Amendment right to confront the witnesses against her. Moore contends there was not an adequate showing that either witness was unavailable to testify at trial, and she did not have an adequate opportunity to cross-examine Dr. Markovich because her conditional examination occurred prior to any discovery in the case. Moore asserts the prosecution's theory of theft by false pretenses is incorrect as a matter of law, and the appropriate charge should have been larceny by trick. She claims financial elder abuse was incorrectly charged as a separate crime rather than as a sentencing enhancement to the underlying count of grand theft.

Moore contends the forgery count is defective because brokerage account statements are not negotiable or transferable and therefore do not come within the meaning of section 470. Finally, Moore claims the Berkley/Anderson, military benefits and Markovich counts involved different methods of commission and were not interrelated, and therefore did not constitute a pattern of related felony conduct for purposes of imposing the aggravated white collar criminal enhancement penalties under section 186.11, subdivision (a)(2).

We conclude that Moore's convictions for grand theft from Berkley and Anderson (counts 1 & 3) must be reversed. The trial court instructed the jury on three theories of theft, including theft by embezzlement, which has the same elements as embezzlement. The record does not show on which theory of theft the jury convicted Moore. Afterreview, we accept the People's concession that Moore's conviction for grand theft (count 8) from Dr. Markovich must be reversed because grand theft is a lesser included offense of financial elder abuse, and the charges were based on the same conduct. We also conclude that the trial court erred when it determined Cdr. Markovich was unavailable to testify as a witness at trial and admitted into evidence his conditional examination. We nevertheless determine that the constitutional violation was harmless beyond a reasonable doubt. Finally, we conclude that a brokerage account statement is not a document or instrument within the meaning of section 470, and necessarily reverse Moore's conviction for forgery (count 10). In all other respects, the judgment is affirmed.

I.FACTUAL AND PROCEDURAL BACKGROUND³

Overview of Charges

The People alleged Tara Virginia Moore was guilty of grand theft and embezzlement of more than $3 million from her employers, William Berkley and Richard Anderson, resulting in the loss of a commercial property lease in Vista and Berkley's successful restaurant, Jack's La Jolla (Jack's). The People also charged Moore with defrauding the Department of Defense and in a separate count, the Department of Veterans Affairs, of more than $65,000 each by falsely claiming she had not remarried in order to continue receiving military survivor benefits. Moore was charged with grandtheft and financial elder abuse for obtaining $1.837 million in loans from her then mother-in-law, Dr. Markovich, for a development project that did not exist. The People charged Moore with two counts of forgery for adding her name to Dr. Markovich's brokerage account statement and falsifying a real estate purchase and sale agreement. The People also alleged that Moore engaged in a pattern of fraud and embezzlement involving two or more related felonies resulting in the loss by another person of more than $500,000 under section 186.11, subdivision (a)(2) (aggravated white collar criminal enhancement).

The Berkley/Anderson Counts

In 1993, Richard Anderson, an investor, and William Berkley, an entrepreneur who specialized in buying and renovating poorly performing real property, purchased an office and retail complex in San Diego County.⁴ Berkley hired Tara Moore to work in the office and show office space to prospective clients. Berkley found Moore to be "quite resourceful." Moore's duties expanded to include bookkeeping and payroll functions, collecting rents, depositing checks, and paying bills.

In 1998, Anderson and Berkley sold their original property at a significant profit. They purchased other properties, creating a separate business entity and bank account for each property. As Anderson and Berkley's holdings increased, Moore's responsibilities expanded. She collected rents, entered data in the financial software application, paidexpenses, handled incoming and outgoing mail, answered the telephone, and was responsible for providing financial records to certified public accounting firms for tax purposes. Moore's salary ranged from $35,000 to $42,000 a year.

Berkley purchased the Tierrasanta Gateway Center (TGC). He sold TGC in approximately 2002. He was not aware the bank account that was established for TGC revenue and expenses remained open after TGC was sold.

Anderson and Berkley acquired a ground lease in a commercial property in Vista, known as the Burlington Coat Factory (BCF) property. The BCF landlord initiated legal proceedings after not receiving monies due him, and Berkley and Anderson lost the lease. Total rental income from the BCF lease was $559,442. However, Berkley and Anderson learned later that only $53,041 was deposited in the BCF bank account, and there were more expenses attributed to BCF than were justified.

Anderson purchased an undeveloped 10-acre property in Rancho Bernardo (RB project or RB property) in 1997, and set up a partnership with Berkley to develop it. Anderson invested approximately $3 million to acquire the property, grade the site and prepare it for...