People v. Selivanov

5 Cal.App.5th 726

210 Cal.Rptr.3d 117

The PEOPLE, Plaintiff and Respondent,

v.Yevgeny SELIVANOV et al., Defendants and Appellants.

The People, Plaintiff and Appellant,

v.Yevgeny Selivanov et al., Defendants and Respondents.

B252894 consolidated with B255166

Court of Appeal, Second District, Division 4, California.

Filed November 17, 2016

As Modified on Denial of Rehearing December 13, 2016

Kaplan Marino, Nina Marino and Allen G. Weinberg, Beverly Hills, for Defendant, Appellant and Respondent Tatyana Berkovich.

Crowell & Moring, Jeffrey H. Rutherford and Nimrod Haim Aviad, Los Angeles, for Defendant, Appellant and Respondent Yevgeny Selivanov.

Young, Minney & Corr, Paul C. Minney, Sacramento, William J. Trinke and Kevin M. Troy ; California Charter Schools Association, Ricardo J. Soto, Julie Ashby Umansky and Phillipa L. Altman as Amicus Curiae on behalf of California Charter Schools Association in support of Defendants, Appellants and Respondents.

Jackie Lacey, District Attorney, Roberta Schwartz, Serena R. Murillo and Matthew Brown, Deputy District Attorneys for Plaintiff and Appellant The People of the State of California.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael C. Keller and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent The People of the State of California.

COLLINS, J.

Spouses Yevgeny "Eugene" Selivanov and Tatyana Berkovich founded a charter school, Ivy Academia, in 2003. In 2006, the Los Angeles Unified School District (LAUSD), which issued Ivy Academia's charter, conducted a random audit of the school's finances. The audit revealed several irregularities, prompting a further investigation that ultimately resulted in the filing of a 33-count information charging Selivanov and Berkovich with numerous financial crimes. After a five-week trial, a jury convicted Selivanov and Berkovich of felony embezzlement (Pen. Code, § 504 )¹ and felony misappropriation of public moneys (§ 424, subd. (a)). The jury further convicted Selivanov of felony false accounting of public moneys (§ 424, subd. (a), money laundering (§ 186.10) and filing false tax returns (Rev. & Tax. Code, § 19705, subd. (a) ).) In addition, as to Selivanov, the jury found true the allegation that the total losses associated with six of the embezzlement counts exceeded $65,000. (§ 12022.6, subd. (a)(1).)

Selivanov and Berkovich each moved for a new trial. The trial court granted the motions as to all of their convictions for misappropriation and false accounting of public moneys under section 424, subdivision (a), on the ground that it improperly had instructed the jury that the funds involved were public moneys. The court sentenced Selivanov to a total of four years, eight months in state prison, and sentenced Berkovich to formal probation on the condition that she serve 45 days in county jail. Both defendants were ordered to pay fines, fees, and restitution.

Selivanov and Berkovich appeal. They jointly challenge one of their embezzlement convictions on several grounds, including sufficiency of the evidence and the trial court's failure to give a unanimity instruction. They also seek reversal based on the court's failure to instruct the jury to determine whether the amount embezzled exceeded $950, and whether the embezzled funds were public funds within the meaning of section 514. Both defendants also contend the court erred by failing to consider proffered juror declarations when setting their restitution. Selivanov separately challenges the sufficiency of the evidence underlying his other convictions. He also challenges the court's failure to instruct the jury on the claim-of-right defense, the admission of certain accounting documents, and several aspects of the restitution order.

As we explain more fully below, we conclude the trial court erred in making the public funds finding but affirm defendants' convictions because the error was harmless. We do, however, direct the trial court to strike from Selivanov's restitution order the joint and several obligation to pay $22,396.60 in restitution to Ivy Academia in connection with his embezzlement conviction in count 2, and strike from Berkovich's restitution order any language making Selivanov jointly and severally liable for it. As modified, the judgments of the trial court are otherwise affirmed in full.

The Los Angeles County District Attorney ("the People") filed a cross-appeal challenging the trial court's grant of defendants' motions for new trial of the section 424 counts. In their opening brief, the People contend the trial court relied on outdated case law to conclude that the jury was required to determine whether a charter school is a district; they do not challenge the validity of the actual basis for the court's ruling, its jury instruction on "public moneys." In their reply, however, the People argue that the trial court's actual basis for granting the motion was erroneous. They urge us to excuse their oversight, reverse the trial court's rulings on the motions for new trial, and reinstate the guilty verdicts on all of the section 424, subdivision (a) counts affected by the motions. We decline their invitation to do so and affirm the trial court's order granting defendants' new trial motions.

PROCEDURAL HISTORY

On May 4, 2011, the People filed a 33-count information charging defendants with various financial crimes.² Counts 1, 3, 5, 7, and 39 charged both defendants with misappropriating public moneys. (§ 424, subd. (a).) Each of those misappropriation counts was paired with a charge of embezzlement in excess of $950. (§ 504, counts 2, 4, 6, 8, and 40, respectively.) The information also charged both defendants with filing false personal income tax returns in violation of Revenue and Taxation Code section 19705, subdivision (a) (counts 27-31).

Selivanov alone was charged with five additional counts of misappropriating and falsely accounting for public moneys. (§ 424, subd. (a), counts 9, 11, 18, 21, and 24.) Four of those counts (9, 18, 21, and 24) were paired with a count of embezzlement in excess of $950 stemming from the same conduct. (§ 504, counts 10, 19, 22, and 25, respectively.) Three of those misappropriation-embezzlement count pairs—18-19, 21-22, and 24-25—were further supplemented with a related count of money laundering (§ 186.10, subd. (a), counts 20, 23, and 26.) The information also alleged that Selivanov alone filed false business income tax returns. (Rev. & Tax. Code, § 19705, subd. (a), counts 32-36.) Berkovich alone was charged with one count of conflict of interest. (Gov. Code, §§ 87100 and 91000, count 38).

The information further alleged, with respect to the misappropriation, embezzlement, and money laundering charges in counts 1-8, 18-26, and 39-40, that defendants took, damaged, and destroyed property of a value exceeding $65,000 within the meaning of section 12022.6, subdivision (a)(1).

With respect to most of the embezzlement counts, including all of those sounding against Berkovich, namely counts 2, 4, 6, 8, 10, 19, and 40, the information alleged that the funds embezzled were "public funds" within the meaning of section 514.

Embezzlement and misappropriation counts 3-6 and 9-10 were dismissed pursuant to defendants' section 995 motions following the preliminary hearing. The court later dismissed the conflict of interest charge against Berkovich (count 38) pursuant to the People's motion under section 1385. Defendants pleaded not guilty to the remaining charges and denied all of the special allegations.

Defendants were tried jointly before a jury in February and March 2013. On April 5, 2013, the jury found Selivanov guilty of seven counts of misappropriating or falsely accounting for public moneys (counts 1, 7, 11, 18, 21, 24, and 39), six counts of embezzling in excess of $950 (counts 2, 8, 19, 22, 25, and 40), two counts of money laundering (counts 23 and 26), and 10 counts of filing false tax returns (counts 27-36). The jury acquitted Selivanov of a third money laundering charge (count 20) but found true the special allegation that, as to counts 2, 8, 19, 22, 25, and 40, Selivanov in the aggregate took money exceeding $65,000 within the meaning of section 12022.6, subdivision (a)(1).

The jury found Berkovich guilty of two counts of misappropriating public moneys (counts 1 and 39), one count of embezzling in excess of $950 (count 2), and five misdemeanor tax counts that were lesser included offenses of the charged felony tax violations (counts 27-31). The jury acquitted Berkovich of one additional count of misappropriation (count 7) and two additional counts of embezzlement in excess of $950 (counts 8 and 40). It also found not true the special allegation that she embezzled in excess of $65,000 within the meaning of section 12022.6, subdivision (a)(1). The court later dismissed Berkovich's misdemeanor tax convictions at the People's request, pursuant to section 1382.

Selivanov and Berkovich each moved for a new trial. The court granted the motions as to the misappropriation and false accounting counts charged under section 424, subdivision (a) (counts 1, 7, 11, 18, 21, 24, and 39) and denied the motions in all other respects.

At sentencing, at the People's request and over defendants' objections, the court found that "this case involved public funds" within the meaning of section 514, the statute setting out the punishment scheme for embezzlement offenses. The court later denied defendants' motions to strike the finding.

The court sentenced Selivanov to a total of four years, eight months in state prison, calculated as the high term of three years on one of the embezzlement counts (§ 504, count 8); an additional year for the enhancement on that count (§ 12022.6, subd. (a)); and eight months, one-third the midterm, on one of the money laundering counts (§ 186.10, subd. (a), count 26). The court imposed concurrent terms on all other counts of conviction....