The People v. Fink

1

THE PEOPLE, Plaintiff and Respondent, v. DAVID MARK FINK, Defendant and Appellant.

B317362

California Court of Appeals, Second District, Seventh Division

June 24, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment and orders of the Superior Court of Los Angeles County No. BA435472, Mildred Escobedo, Larry P Fidler, and Henry J. Hall, Judges.

Mary Jo Strnad; Aaron J. Schechter, under appointments by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Susan S. Kim, Deputy Attorney General for Plaintiff and Respondent.

RAPHAEL, J.^[*]

David Mark Fink appeals from convictions for obtaining money by false pretenses, offering false instruments, identity theft grand theft, and attempted grand theft. His convictions were based on a criminal scheme spanning several years in which Fink sent numerous writs of execution to sheriff's departments throughout California to fraudulently obtain and execute on monetary judgments in civil cases. Fink challenges his convictions and sentence.

Fink argues the trial court improperly revoked his self represented (pro per) status and abused its discretion when it refused to dismiss the case for a violation of his right to a speedy trial after his trial was delayed because of the COVID-19 pandemic. Fink also seeks appellate review of the trial court's proceedings on and subsequent denial of his motion under People v. Pitchess (1974) 11 Cal.3d 531 (Pitchess), for discovery of the personnel records of the sheriff's deputy who led the investigation of his crimes. In addition, he complains there was insufficient evidence to support 16 of his convictions for violating Penal Code^[1]section 532 (theft by false pretenses).

With respect to sentencing, Fink asserts the trial court erred in ordering victim restitution on two counts, for which the undisputed evidence showed the stolen funds were returned to the victims. Moreover, he argues that his sentences on various counts and enhancements must be vacated in light of recent amendments to sections 654, 1170, subdivision (b)(6) and 186.11.

Only Fink's complaints about his sentence have merit. We affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

A. Fink's Scheme To Collect on Small Claims Judgments

Fink has prior convictions for burglary, identity theft, forgery, and other financial fraud crimes in multiple separate cases, including one involving conduct similar to this case.

Fink's current convictions are based on a scheme of collecting on judgments using false or forged legal documents to make it appear that small claims judgment creditors had assigned those judgments to him.

At trial, the evidence showed Fink carried out this scheme using shell corporate entities (USJRU, Inc. and CollectionUSA) and false and stolen identities and aliases (David Carter, David Anderson, and David Jones). Using his aliases, Fink set up mailbox accounts for his fictitious companies and falsified notary stamps to create computer-generated "assignments" to USJRU or CollectionUSA of small claims judgments entered against large companies like AT&T, Wells Fargo, JCPenney, and Best Buy. Fink also created fraudulent writs of execution, which he forwarded to sheriff's departments across California. Acting on the writs, the sheriffs either levied funds from the judgment debtor's bank or, in some cases, conducted a "till tap" by seizing cash at the judgment debtor's place of business. The collected funds were transmitted to the county, which in turn, acting on instructions from Fink, would send the funds to bank accounts in Idaho that Fink had opened.

B. The Discovery of Fink's Crimes, and Fink's Arrest

In January 2015, Deputy Chief Sarkis Ohannessian of the San Bernardino County Sheriff's Department (SBSD) worked in the court services division, which processed levies and enforced civil writs of execution. Through an investigation of SBSD's files, Ohannessian discovered several writs submitted by individuals named David Carter or David Anderson that he suspected were fraudulent or forged based on anomalous party names, dates, and information, as compared to the respective court minutes. He discovered that each of these suspicious writs arose from a small claims case where a judgment had been entered for or assigned to someone other than Fink, and no writ had ever been issued to Fink, his aliases, or his shell companies.

Ohannessian also investigated USJRU, discovering it had a mailbox that was leased by David Anderson, using an Ohio driver's license. Ohannessian learned USJRU's mail was forwarded from the mailbox to three places in Idaho, and that David Anderson's mail was forwarded from a separate Los Angeles mailbox to an Idaho post office. The postmaster in Idaho was familiar with a "David Anderson," knowing him as someone who frequented the post office to get his mail. The postmaster identified Fink as David Anderson.

In March 2015, Idaho authorities placed Fink under surveillance and then arrested him.^[3] They later seized computer hard drives, USB drives, cell phones, and other evidence after executing a search warrant at Fink's residence. Authorities also searched the physical and electronic files of USJRU. They collected evidence, including fake identification cards, bank cards, and driver's licenses with Fink's picture and the names David Carter and David Anderson. Ohannessian determined the names David Carter, David Anderson, and David Jones were Fink's aliases.

C. Trial Proceedings

1. The charges

On January 6, 2017, an information charged Fink with (1) 28 counts of obtaining money, labor, or property by false pretenses, in violation of section 532, subdivision (a) (counts 1-4, 9-12, 15, 18-23, 27, 30, 35, 41-42, 45-47, 50, 53-56); (2) 18 counts of procuring or offering a false or forged instrument, in violation of section 115, subdivision (a) (counts 5, 7, 13, 16, 24, 28, 31, 33, 36, 38, 43, 48, 51, 58-62); (3) 13 counts of identity theft, in violation of section 530.5, subdivision (a) (counts 6, 8, 14, 17, 25, 29, 32, 34, 37, 39, 44, 49, 52); (4) one count of grand theft of personal property, in violation of section 487, subdivision (a) (count 57); and (5) one count of attempted grand theft, in violation of sections 664 and 487, subdivision (a) (count 63).^[4]

The information also contained four special allegations. First, it alleged that, under section 186.11, subdivision (a)(3), the offenses in counts 1 through 25, 27 through 39, and 41 through 57 were related felonies involving fraud, embezzlement, a pattern of related felony conduct, and the taking of more than $100,000. Second, it alleged that, prior to the commission of the offenses in counts 1 through 25, 27 through 39, and 41 through 57, Fink had been convicted of three serious or violent felonies and thus was subject to sentencing under the three strikes law (§§ 667, subds. (b)-(j), 1170.12). Third, it alleged that, in the commission of the offenses in counts 1 through 4, 9 through 12, 15, 18 through 23, 27, 30, 35, 41 through 42, 45 through 47, 50, and 53 through 57, Fink took, damaged, and destroyed property worth more than $65,000, within the meaning of section 12022.6, subdivision (a)(1). Fourth, it alleged that the offenses in counts 1 through 4, 9 through 12, 15, 18 through 23, 27, 30, 35, 41 through 42, 45 through 47, 50, and 53 through 57 were thefts of over $100,000, within the meaning of section 1203.045, subdivision (a).

On October 19, 2018, Fink pleaded not guilty to all charges.

2. Pretrial proceedings

From his first appearance in September 2018 through the end of October 2020, Fink represented himself, with attorneys appointed as his standby or advisory counsel. In pretrial hearings, Fink cross-examined witnesses, presented evidence, and filed motions, including a Pitchess motion and motions to disqualify the judge. The trial court repeatedly admonished Fink for improper questioning of witnesses, misrepresenting the evidence and law, and delaying and disrupting the proceedings. After several warnings, the court terminated Fink's pro per status.^[5] The court then appointed Fink's advisory counsel to represent him.

From his first appearance in September 2018 through midMarch 2020, Fink waived his right to a speedy trial (commonly referred to as "waiving time"), requested continuances, and acquiesced to various continuances without objection. However, from March 2020 through the fall of 2021, Fink's case was continued because of orders issued by the Chief Justice of California and the presiding judge of the Los Angeles County Superior Court (LASC) in response to the COVID-19 pandemic. In July 2020, Fink withdrew his general time waiver. After that, with one exception, Fink refused to waive time,^[6] objected to the continuance of the trial, and twice moved to dismiss his case for violation of his speedy trial rights. The court denied his motions and overruled his objections.^[7]

3. The trial

On October 27, 2021, Fink waived his right to a jury trial and proceeded by way of a bench trial. The trial began the next day.^[8]

The prosecution presented testimony from Ohannessian, California Department of Justice investigators, and Idaho law enforcement officers about their investigations of Fink's scheme and the cases from across California in which Fink used false or forged documents to obtain writs of execution and collect small claims judgments. The prosecution also presented the testimony of victims who had obtained a judgment in a small claims case but had not assigned the judgment to Fink, USJRU, CollectionUSA, David Carter, David...