People v. Wooten CA2/3 ( 2021 )

Filed 4/27/21 P. v. Wooten CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B295326
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA430233
v.
DANNY R. WOOTEN et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed as
modified.
Stephen M. Hinkle, under appointment by the Court of
Appeal, for Defendant and Appellant, Danny R. Wooten.
Kevin D. Sheehy, under appointment by the Court of
Appeal, for Defendant and Appellant, Tyrone E. Collins.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo, Acting Supervising Deputy
Attorney General and Heidi Salerno, Deputy Attorney General,
for Plaintiff and Respondent.
INTRODUCTION
Danny R. Wooten and Tyrone E. Collins appeal from the
judgments entered upon their respective convictions and
sentences on multiple counts of violating Penal Code1 section 424,
subdivision (a), section 504, and Government Code section 1090.
Between 2003 and 2014, Wooten, a former employee of the City of
Pasadena (the City), and Collins, an electrical contractor,
collaborated to embezzle more than three million dollars from the
City by submitting hundreds of fraudulent invoices for payment
for construction work regarding a utility project.
Appellants assert numerous challenges to their convictions
and sentences. Primarily, they argue they were improperly
charged with multiple counts of violating section 424, subdivision
(a), section 504, and Government Code section 1090. Appellants
also argue the trial court failed to calculate their custody credits
correctly. As we shall explain, only the argument concerning the
custody credits has merit. Accordingly, we modify the judgments
as to the conduct credits and affirm.
FACTS AND PROCEDURAL BACKGROUND
In 1968, the City began the Underground Utility Program
(UUP) to remove utility poles from City streets, place the utility
lines underground, attach the underground lines to each property
and remove the overhead lines. The UUP, which the City
anticipated would take approximately 100 years to finish, was
implemented in phases, neighborhood by neighborhood. As part
of the UUP, homeowners had the option to hire contractors to
1 All undesignated statutory references are to the Penal Code.
2
connect their houses to the underground lines, in which case the
City would reimburse the homeowners for the cost of the work.
The City also contracted directly with independent electrical
contractors to do the connection work for some properties. In
either case, the maximum reimbursement the City paid per
property was $3,750.
Wooten worked for the City as a management analyst,
assigned to the UUP to help property owners obtain
reimbursement for the underground connection process and to
assist contractors in obtaining payment for their work.
Collins owned and operated Collins Electric, an electrical
contracting company that provided electrical work on City
projects, including the UUP.
1. Appellants’ Crimes
Between 2003 and 2014, Wooten and Collins worked
together to steal funds from the City’s UUP. Specifically, Wooten
submitted hundreds of fraudulent invoices to the City on behalf
of Collins Electric for electrical work for the UUP. The fake
invoices submitted for Collins Electric included: invoices with a
property address where the work permit was issued to a different
company; invoices for work not completed on the properties until
a decade later; invoices for non-existent addresses; multiple
invoices for the same property address; and invoices for
properties outside the project boundaries.
To carry out the schemes, Wooten created fake invoices for
Collins Electric, obtained (or forged) the signatures of his City
supervisors, and submitted the invoices for payment. He then
delivered the checks to Collins, who, in turn, deposited them into
his bank account. Shortly after that, Collins would give Wooten a
“kickback” payment in the form of a check or bank-to-bank
3
transfer. Invoices for Collins Electric varied between $20,000 and
$23,750, and some totaled $43,750. Between 2003 and 2014, the
City issued 270 checks to Collins Electric, paying the company a
total of $3,543,359 based on false invoices. During this same
period, Wooten received $642,313 in kickback payments from
Collins.
2. Criminal Schemes Involving Other Vendors
In addition to Wooten’s crimes with Collins, between 2007
and 2013, Wooten also submitted false invoices for electrical work
for the UUP on behalf of two churches that Wooten owned,
Southern California Evangelistic Jurisdiction (SCEJ), and New
Covenant Center Fellowship (NCCF). However, neither church
performed any contracting or electrical services for the UUP. The
fake invoices for SCEJ totaled $2,132,656, and the false invoices
paid to NCCF totaled $712,810.49. In 2010, Wooten also
submitted two false invoices for Melody Jenkins, a City employee.
3. The Charges and Convictions
In 2014, Wooten’s immediate supervisor retired, and the
City assigned a new supervisor to the UUP. At the behest of a
City oversight committee, the newly appointed supervisor
reviewed payments on the UUP. The review revealed the
fraudulent invoices and overpayments to Collins Electric, SCEJ,
and NCCF. A search of Collins’s house and truck unearthed ten
cashier checks that Collins had made payable to Wooten in
amounts between $20,000 and $30,000.
Wooten and Collins were arrested. Wooten was charged
with a total of 59 counts, alleging multiple violations of public
officer crimes (§ 424, subd. (a)), embezzlement of the public funds
of the City (§ 504), conflict of interest violations (Gov. Code §
4
1090), and various enhancements based on the amount of the
thefts. (§ 1203.045, subd. (a) and § 186.11, subd. (a)(2).) Collins
was charged with 20 counts of public officer crimes,
embezzlement and the same enhancements as Wooten.
In November 2018, the jury found Wooten guilty of 19
counts of public officer crimes (§ 424, subd. (a)), 19 counts of
embezzlement of public funds (§ 504), and 15 counts of conflict of
interest for his conduct involving SCEJ and NCCF (Gov. Code, §
1090). The jury found Collins guilty of 10 counts of public officer
crimes and 10 counts of embezzlement (§ 424, subd. (a) and §
504). The jury also found the enhancements alleged against
Wooten and Collins true.
The trial court sentenced Wooten to 13 years in state
prison, which included four years on the public officer crimes
alleged in count 25, plus five years for the enhancement, and one
year each for the public officer crimes alleged in counts 1, 4, 10,
and 13. The court imposed concurrent three-year sentences on
the remaining public officer crimes counts. Under section 654, the
court also imposed and stayed three-year sentences on the
embezzlement counts and the conflict of interest counts. The
court sentenced Collins to six years in state prison, which
included three years on the public officer crimes alleged in count
22, plus three years for the enhancement. The court imposed
concurrent three-year sentences on the remaining public officer
crimes counts and imposed and stayed under section 654 three-
year sentences on the embezzlement counts.
Wooten and Collins filed timely notices of appeal.
5
CONTENTIONS
Appellants raise multiple challenges to their respective
convictions and sentences. First, Collins contends we should
reverse his convictions of public officer crimes as a matter of law
because he is not within the class of persons subject to section
424, subdivision (a)(1), and the evidence did not support those
convictions. Second, appellants claim they should have been
convicted of only one count of each of the crimes because their
criminal conduct qualified as continuing offenses or because the
offenses stemmed from the same intention, general impulse, and
plan and thus they merged into a single crime. Third, appellants
maintain they should not have been charged with both public
officer crimes (section 424, subdivision (a)) and embezzlement of
public funds (section 504) because those crimes are merely
different statements of the same offense. Fourth, appellants
argue the trial court erred by failing to stay all but one of their
public officer crimes under section 654. Finally, appellants argue
the trial court should have granted them additional custody
credits.
DISCUSSION
1. Collins was properly charged and convicted of
violating section 424, subdivision (a)(1).
On appeal, Collins assails his convictions of violating
section 424, subdivision (a)(1), arguing that as a matter of law, he
was not among the class of individuals who can be charged under
the statute and that sufficient evidence did not support the
convictions. As we explain, neither argument has merit.
Section 424, subdivision (a)(1), criminalizes the
misappropriation of public money by a public officer, who is
6
charged with the safe-keeping of those funds.2 Courts have
recognized that laws concerning public officer crimes were
enacted to safeguard the public treasury and ensure public
confidence in the use of its money. (See People v. Groat (1993) 19
Cal.App.4th 1228, 1232 (Groat) [acknowledging purpose is to
ensure custodians of public money hold and keep the funds
inviolate, and use or disburse them only in strict compliance with
the law and noting that “[b]ecause of the essential public interest
served by the statute it has been construed very broadly”].)
1.1. Collins was properly charged as an aider and
abettor under section 424, subdivision (a)(1).
Collins argues that he cannot be liable under section 424,
subdivision (a)(1) as a matter of law because he was not a public
officer nor held any other position in which he was responsible for
public funds. Collins cites two cases, People v. Hubbard (2016) 63
Cal.4th 378 (Hubbard), and People v. Aldana (2012) 206
Cal.App.4th 1247 (Aldana), in support of this argument.
In Hubbard, the superintendent of a school district
challenged his convictions under section 424, subdivision (a),
arguing that he lacked the direct authority to control public
2 Section 424 provides in pertinent part: “Each officer of this state, or
of any county, city, town, or district of this state, and every other
person charged with the receipt, safekeeping, transfer, or
disbursement of public moneys, who either . . . [w]ithout authority of
law, appropriates the same, or any portion thereof, to his or her own
use, or to the use of another … [i]s punishable by imprisonment in the
state prison for two, three, or four years, and is disqualified from
holding any office in this state.” (§ 424, subd. (a)(1).)
7
funds, and thus, he could not be charged under the statute.
(Hubbard, supra, 63 Cal.4th at pp. 386–387.) The Supreme Court
disagreed, interpreting the scope of section 424, subdivision (a),
to include the superintendent’s fiduciary duties to safeguard the
district’s funds. The court also concluded that the evidence
supported the jury’s verdict that Hubbard exercised financial
authority and was therefore properly “ ‘charged with the receipt,
safekeeping, transfer, or disbursement of public moneys.’ ” (Id. at
p. 392)
In Aldana, supra, 206 Cal.App.4th 1247, the court reversed
a physician’s conviction under section 424 for insufficient
evidence. In that case, prosecutors charged an administrator of a
public hospital and a physician with violations of section 424,
subdivision (a). The physician worked in a hospital program that
required him to report his hours on a timesheet signed by the
administrator. (Aldana, supra, 206 Cal.App.4th at pp. 1250–
1251.) The evidence showed the physician signed blank
timesheets and that the administrator completed and submitted
them for payment. (Ibid.) The Aldana court concluded that the
physician could not be charged with violations of section 424
because he did not have sufficient control over funds to be held
accountable under the statute. (Id. at pp. 1254–1255.)
In our view, Hubbard and Aldana are distinguishable from
this case and do not support Collins’s argument. First, unlike the
defendants in Hubbard and Aldana, Collins was tried as an aider
and abettor to Wooten on the section 424, subdivision (a) counts,
not as a principal in those crimes. Nothing in Hubbard or Aldana
precludes aider and abettor liability under section 424,
subdivision (a).
8
In fact, Hubbard involved an entirely different question
than this case. (See Hubbard, supra, 63 Cal.4th at p. 381
[identifying the question before the court as “whether the statute
applies to all public officers, or only to those ‘charged with the
receipt, safekeeping, transfer, or disbursement of public moneys,’
” and holding “that section 424 applies only to those public
officers imbued with such responsibility over public moneys”].)
Hubbard did not directly or implicitly consider the aider and
abettor question at issue here. Likewise, Aldana did not address
the matter either; the issue in Aldana centered on whether there
was substantial evidence that the doctor, as a principal in the
crimes, exercised sufficient control over the funds to be charged
with a violation of the statute. Thus, neither Aldana nor
Hubbard precludes an independent private contractor’s
conviction as an aider and abettor to a principal properly charged
with a violation of section 424, subdivision (a).
Collins’s suggestion that section 424, subdivision (a)
liability has never been upheld for aiders and abettors is not well
taken. Similar to this case, in People v. Little (1940) 41
Cal.App.2d 797 (Little), two defendants, Richards and her ex-
husband Little, were charged with violating section 424,
subdivision (a)(1). Richards was employed as a bookkeeper and
collector for the city-owned-and-operated water system. She
embezzled funds and sent the money to Little, who was not a city
employee. The court observed that Little “advised and
encouraged Mrs. Richards in her criminal acts.” (Id. at p. 805.)
Like Collins here, Little challenged his conviction of section
424, subdivision (a), arguing that he could not be found guilty of
violating the statute because he was not a public official
“ ‘charged with the receipt, safe-keeping, transfer or
9
disbursement of public moneys.’ ” (Little, supra, 41 Cal.App.2d at
p. 805.) The court rejected his argument, concluding that
although Little was not a public employee, his guilt was properly
premised on his status as an aider and abettor to Richards’
violation of section 424, subdivision (a)(1). (Ibid.; see also People
v. Qui Mei Lee (1975) 48 Cal.App.3d 516, 523 (Lee)
[acknowledging that the defendant could be charged with aiding
and abetting under section 424]; accord, Webb v. Superior Court
(1988) 202 Cal.App.3d 872, 893–894, 898–899 (Webb) [(conc. opn.
of Ardaiz, J.) relying on Lee, recognizing although the defendant
was not a city official, the evidence supported a reasonable
inference that he aided and abetted city officials in the
misappropriation of city funds sufficient to support a conviction
under section 424, subdivision (a)].) The Supreme Court has not
explicitly or implicitly overruled Little or the other cases, such as
Lee, that recognized aider and abettor liability for violations of
section 424, subdivision (a). Consequently, we find no error as a
matter of law in charging Collins with violations of section 424,
subdivision (a) based on the theory that he aided and abetted
Wooten.
1.2. Substantial evidence supported Collins’s
section 424, subdivision (a) convictions.
We also reject Collins’s suggestion raised in his reply brief
that the evidence was insufficient to support his conviction as an
aider and abettor.
“ ‘In assessing the sufficiency of the evidence, we review the
entire record in the light most favorable to the judgment to
determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’
10
[Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We
presume in support of the judgment the existence of every fact
that could reasonably be deduced from the evidence. (People v.
Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of
substantial evidence only if “ ‘upon no hypothesis whatever is
there sufficient substantial evidence to support’ ” the conviction.
(People v. Bolin (1998) 18 Cal.4th 297, 331.)
Substantial evidence showed that Collins aided and abetted
Wooten, a city official, to misappropriate the City’s funds. Unlike
the doctor in Aldana, who was a passive participant in the
administrator’s scheme, Collins was actively involved with
Wooten’s conduct and worked in concert with him to
misappropriate City funds. After Collins received a check from
Wooten, he put it in one of his accounts and then gave a total of
$635,313 back to Wooten through checks and bank-to-bank
transfers. The jury could reasonably infer that appellants worked
together and Wooten could not have carried out the
misappropriation without Collins’s active participation. And
based on this evidence, the jury reasonably found that Collins
aided and abetted Wooten in the misappropriation of City funds.
Accordingly, Collins has failed to demonstrate any error
concerning his convictions of section 424, subdivision (a).
2. The People did not err in charging appellants with
multiple counts of violating section 424, subdivision (a),
section 504, and Government Code section 1090.
Between 2004 and 2014, Wooten submitted hundreds of
false invoices on behalf of Collins Electric, the two religious
organizations, SCEJ and NCCF, and Melody Jenkins, to the City
for work allegedly performed in the UUP. Rather than charge
each fraudulent invoice as a separate offense, the People
11
aggregated the charges by year. Thus, as to Wooten’s criminal
scheme involving Collins Electric and Melody Jenkins, Wooten
was charged with one count of violating section 424, subdivision
(a) (public officer crimes) and section 504 (embezzlement of public
funds) for every year between 2004 and 2014 that each scheme
operated; as to SCEJ and NCCF prosecutors charged Wooten
with one violation each of Government Code section 1090 (conflict
of interest) for every year between 2007 and 2014. Collins was
similarly charged with one count each of violation of section 424,
subdivision (a), and section 504 for each year between 2004 and
2014.
Before this court, appellants argue that at most, they can
be convicted of only one count of violating each statute. They
articulate two distinct arguments in support of their contentions.
First, they maintain that because their criminal scheme
continued over time, their crimes amounted to a “continuing
offense.” Alternatively, they maintain that because their crimes
involved one course of conduct, scheme, and plan to steal funds
from a single victim, they can only be convicted of one count of
each of the offenses based on People v. Bailey (1961) 55 Cal.2d
514 (Bailey doctrine). We address these contentions in turn.
2.1. None of the three statutory offenses qualifies
as a continuing offense under the continuing offenses
doctrine.
The California Supreme Court explained the concept of a
continuing offense as “[m]ost crimes are instantaneous since they
are committed as soon as every element is satisfied. Some crimes,
however, are not terminated by a single act or circumstance but
are committed as long as the [illegal] conduct continues. Each
day brings ‘a renewal of the original crime or the repeated
12
commission of new offenses.’ [Citation.] ... [¶] ‘[A] continuing
offense is marked by a continuing duty in the defendant to do an
act which he fails to do. The offense continues as long as the duty
persists, and there is a failure to perform that duty.’ [Citations.]
[¶] Determining if a particular violation of law constitutes a
continuing offense is primarily a question of statutory
interpretation. [Citations.] The answer, however, does not depend
solely on the express language of the statute. Equally important
is whether ‘the nature of the crime involved is such that [the
Legislature] must assuredly have intended that it be treated as a
continuing one.’ [Citations.] [Fn. omitted.]” (Wright v. Superior
Court (1997) 15 Cal.4th 521, 525–526 (Wright).)
The doctrine of continuing offenses is applied only in a few
limited circumstances where the law imposes a continuing duty
to act or refrain from certain conduct. (Id. at p. 528.) As explained
in Wright, examples of continuing offenses include the failure to
register as a sex offender, drug possession, carrying a concealed
weapon, cultivation of marijuana, unauthorized possession of
food stamps, concealing stolen property, pimping, contempt of
court for failure to pay child support, failure to provide for minor
children, driving while intoxicated, maintaining a nuisance, and
kidnapping. (Id. at p. 525, fn. 1.)
Appellants assert they were subject to one violation of each
statute under the continuing offenses doctrine because their
criminal actions were continuing crimes. However, appellants
have not identified any case in which the offenses charged here
have been characterized as continuing offenses. Nothing in the
language, context, or nature of section 424, subdivision (a),
section 504, or Government Code section 1090 suggests that a
violation of these statutes is of the limited category of continuing
13
offenses. We observe from the statutory language that these
crimes do not require an ongoing or continuous course of conduct,
and thus “[b]y [the] terms” they do not “expressly state a
continuing offense.” (Wright, supra, 15 Cal. 4th at p. 526.) These
are all offenses that are instantaneous: the violation is complete
at the first instance the elements are met.
Specifically, section 424 criminalizes the misappropriation
of public funds by public officials who are charged with the safe-
keeping of those monies. (§ 424.) Likewise, section 504
criminalizes the embezzlement of public funds by a public official.
(§ 504.) Each act of misappropriation and embezzlement
constitutes a separate offense that is complete once it occurs.
Unlike the failure to register as a sex offender or illegal weapons
possession, each day does not bring a renewal of the original
crime or the repeated new commission of the offense of sections
424, subdivision (a) and 504. Similarly, Government Code section
1090 prohibits public employees from having any personal
financial interest in any contract they make in their official
capacity. Although Government Code section 1090 imposes a
duty upon public employees to avoid financial conflicts of
interest, the statute does not impose an affirmative duty to take
any particular action, the failure of which is an ongoing crime.
Instead, a public employee violates section 1090 each time the
individual enters into a new contract on behalf of the government
in which the public employee holds a personal financial interest.
Thus, nothing in sections 424, 504, or Government Code section
1090, takes them outside the usual category of instantaneous
crimes. (See Wright, supra, 15 Cal.4th at p. 525.)
Moreover, we are not convinced that the nature of the
crimes in this case qualifies them as continuing offenses. That
14
appellants violated these statutes numerous times over a decade
does not transform the separate offenses into continuing offenses.
The criminal acts at issue here—obtaining payments from the
City after submitting hundreds of fraudulent invoices—were
separate and discrete crimes; they were not the kind of activity
that, by its nature, continued, as is the case with carrying a
concealed weapon, cultivation of marijuana, or kidnapping. (See
Wright, supra, 15 Cal.4th at p. 525, fn. 1.)
Thus, we conclude that appellants’ violations of sections
424, 504, and Government Code section 1090 do not constitute
continuing offenses.
2.2. The Bailey doctrine does not apply to
appellants’ convictions.
Alternatively, appellants argue that they should not suffer
multiple convictions of section 424, subdivision (a), section 504,
and Government Code section 1090 because they committed all
the offenses under one plan, purpose, and intent—to steal from a
single victim, the City. They maintain that given the nature of
their conduct, all of their criminal conduct should have been
charged as one violation of each statute under the Bailey
doctrine. As we shall explain, the Bailey doctrine does not apply
to violations of section 424, subdivision (a), and conflict of
interest crimes under Government Code section 1090 as a matter
of law. In addition, given the evidence in the case, the Bailey
doctrine does not apply to the public embezzlement crimes
charged under section 504.
15
2.2.1 Public Officer Crimes and Conflict of Interest
Violations
In People v. Bailey, the Supreme Court created an
exception to the general rule embodied in section 954 that
permits multiple theft convictions for a single act or series of
related criminal acts. In Bailey, the defendant received a series of
welfare payments based on one fraudulent statement. Each
welfare payment that the defendant received amounted to only
petty theft, but she was charged and convicted of a single count of
grand theft because the total amount of all the thefts, when
aggregated, constituted felony grand theft. (Bailey, supra, 55
Cal.2d at pp. 515–516, 518.) The court concluded that a single
conviction for grand theft was proper. In answering the question
of whether multiple petty thefts could be aggregated to constitute
one count of grand theft, the Bailey court reasoned that “where as
part of a single plan a defendant makes false representations and
receives various sums from the victim the receipts may be
cumulated to constitute ... one offense of grand theft. [Citations.]”
(Id. at pp. 518–519.) The court further observed that “[t]he test
applied in these cases in determining if there were separate
offenses or one offense is whether the evidence discloses one
general intent or separate and distinct intents. The same rule
has been followed in larceny and embezzlement cases, and it has
been held that where a number of takings, each less than $200
but aggregating more than that sum, are all motivated by one
intention, one general impulse, and one plan, the offense is grand
theft. [Citations.]” (Id. at p. 519.)
The court additionally stated its view that “[w]hether a
series of wrongful acts constitutes a single offense, or multiple
offenses depends upon the facts of each case, and a defendant
16
may be properly convicted upon separate counts charging grand
theft from the same person if the evidence shows that the
offenses are separate and distinct and were not committed
pursuant to one intention, one general impulse, and one plan.
[Citation.]” (Bailey, supra, 55 Cal.2d at p. 519.)
Subsequent appellate decisions interpreted Bailey as being
a two-sided coin. Courts applied what became known as the
“converse” Bailey doctrine to prohibit multiple grand theft
convictions when separate thefts were committed against a single
victim pursuant to one intent, general impulse, and plan. (See,
e.g., People v. Jaska (2011) 194 Cal.App.4th 971, 981 (Jaska);
People v. Tabb (2009) 170 Cal.App.4th 1142, 1148–1149 (Tabb).)
To determine whether the converse Bailey doctrine applied,
appellate courts examined the nature of the underlying crimes.
Accordingly, courts applied the converse Bailey doctrine where
the statute quantified the harm and damage as an element of the
offense. Such offenses permitted the prosecution to aggregate
that harm or damage. The most common crimes falling into this
category were theft offenses. Until recently, the converse Bailey
doctrine entitled a defendant to a dismissal of all but one
conviction for multiple theft crimes, even if each involved a
complete criminal act, as long as the crimes were committed
“pursuant to a single general impulse, intention or plan.
[Citation.]” (Tabb, supra, 170 Cal.App.4th at p. 1150; see People
v. Brooks (1985) 166 Cal.App.3d 24, 30–32 [theft]; People v.
Kronemyer (1987) 189 Cal.App.3d 314, 363–364 (Kronemyer)
[same].)
In contrast, courts declined to apply the converse Bailey
doctrine to crimes that did not monetize and aggregate harm or
damage as part of the offense; thus, a defendant could be
17
convicted of multiple crimes—even if the crimes are part of the
same impulse, intention, or plan—as long as each conviction
reflected a completed criminal act. Many appellate courts limited
the converse Bailey doctrine to cases of theft. (See, e.g., People v.
Neder (1971) 16 Cal.App.3d 846, 852 (Neder) [holding that the
Bailey doctrine, which was “developed for the crime of theft,”
should not be “extended to forgery”]; In re David D. (1997) 52
Cal.App.4th 304, 309 [recognizing that application of the Bailey
doctrine “has been limited ... to the crime of theft”]; People v.
Drake (1996) 42 Cal.App.4th 592, 597, 595 [declining “to extend
the Bailey doctrine beyond theft offenses,” and holding that the
defendant was properly convicted of five separate counts of
MediCal fraud based on five acts of false billing]; People v.
Washington (1996) 50 Cal.App.4th 568, 575, 577, (Washington)
[noting that the “test articulated in Bailey has been consistently
applied in theft cases,” and declining to apply Bailey to the crime
of burglary because “the difference between theft and burglary
makes application of the Bailey rule inappropriate”]; People v.
Johnson (2007) 150 Cal.App.4th 1467, 1477, [following
Washington in rejecting Bailey’s application to convictions for
battery of a cohabitant]; People v. Zanoletti (2009) 173
Cal.App.4th 547, 559–560 [declining to extend it to submission of
fraudulent insurance claims].)
In confining the converse Bailey doctrine to harm-focused
crimes, courts recognized that expanding the doctrine further
would exacerbate two of its undesirable side effects: The doctrine
effectively grants wrongdoers a “felony discount” by assuring
them only one conviction for a potentially limitless number of
related offenses (In re Arthur V. (2008) 166 Cal.App.4th 61, 67),
and it effectively displaced the legislative definitions of what
18
constitutes a completed crime with a new constellation of
judicially created “continuous crimes” that come into being
should all related burglaries, sex crimes or identity thefts be
aggregated into a single “continuous crime.” (Washington, supra,
50 Cal.App.4th at p. 578.)
In 2014, the Supreme Court revisited Bailey and the
converse Bailey doctrine in People v. Whitmer (2014) 59 Cal.4th
733, 741 (Whitmer). The Whitmer court held that appellate courts
had misinterpreted Bailey and concluded that a defendant could
sustain multiple convictions “based on separate and distinct acts
of theft, even if committed pursuant to a single overarching
scheme.” (Whitmer, at pp. 740–741.) In Whitmer, the defendant,
the manager of a motorcycle dealership, arranged for the
fraudulent sale of vehicles to fictitious buyers. The jury convicted
him of 20 counts of grand theft for 20 fictitious sales. The 20 sales
occurred on 13 different dates. Some of the transactions occurred
on the same date and involved the same fictitious buyer;
however, separate paperwork was completed for each
transaction. (Id. at pp. 734–735.) Reasoning that each grand theft
count was based on a separate and distinct act, the Whitmer
court concluded a thief should not receive a “felony discount” if
the thefts are separate and distinct even if they are similar. (Id.
at pp. 736, 740–741 [“[A] defendant may be convicted of multiple
counts of grand theft based on separate and distinct acts of theft,
even if committed pursuant to a single overarching scheme.”].)
However, Whitmer did not overrule Bailey but explained the
“Bailey rule must be interpreted in light of its facts.” (Id. at p.
740.) The court also recognized that its holding should not be
applied retroactively because a “long, uninterrupted series of
Court of Appeal cases … [had] consistently held that multiple
19
acts of grand theft pursuant to a single scheme cannot support
more than one count of grand theft.” (Id. at p. 742; People v.
Kirvin (2014) 231 Cal.App.4th 1507, 1518.)
Appellants argue that the public officer offenses and the
conflict of interest violations are essentially theft offenses to
which the converse Bailey doctrine should apply because these
violations were committed according to one plan, scheme, and
intent to steal from the City. They assert that rather than
multiple counts charged based on years, they should have been
charged with only one count of each offense. They further assert
that even though the Whitmer court limited Bailey’s application,
the converse Bailey doctrine remains viable for the crimes they
committed before 2014. We are unconvinced.
The converse Bailey doctrine does not apply to either the
public officer crimes or the conflict of interest violations charged
in this case. Neither is a theft offense for which harm is
monetized or aggregated.
Section 424, subdivision (a) targets how the public officer
exercises control over public money. As we discussed, a defendant
violates section 424, subdivision (a), when the defendant is a
person “charged with the receipt, safekeeping, transfer, or
disbursement of public moneys” and the defendant, “[w]ithout
authority of law, appropriates the same, or any portion thereof, to
his or her own use, or the use of another.” (§ 424, subd. (a)(1).) In
promulgating section 424, subdivision (a), the Legislature sought
not to punish thieves as such but to hold public officers
accountable for public money in their care and custody and to
safeguard against the use or disbursement of public funds in a
manner that violates the law. (Groat, supra, 19 Cal.App.4th at p.
1232.) The essence of the crime is not concerned with the dollar
20
amount that is taken. (See People v. Battin (1978) 77 Cal.App.3d
635, 657, superseded by statute on other grounds as explained in
People v. Connor (1983) 34 Cal.3d 141, 147 [no specific dollar
amount loss must be demonstrated to prove a violation of section
424].) Instead, the misappropriation of public funds by a public
officer is concerned with how one commits the taking—by
abusing his position of authority. Accordingly, a violation of
section 424 “does not require proof of an intent to steal or
misappropriate, but rather the intentional doing of an act that
results in the misappropriation. [Citation.]” (Webb, supra, 202
Cal.App.3d at p. 885; Stark v. Superior Court (2011) 52 Cal.4th
368, 392 [holding that a violation of section 424 occurs whenever
an officer uses public funds in a manner forbidden by the law
even though he may have no fraudulent intent when he does so].)
Here, appellants’ convictions under section 424 did not
punish them for stealing money, labor, or property in excess of a
certain dollar amount. Instead, they were punished because
Wooten misused his public position and he failed to protect public
money and Collins aided him in that effort. Courts have
consistently declined to apply the converse Bailey doctrine to
crimes like section 424, subdivision (a), that focus on the manner
of the theft rather than the amount stolen. (See, e.g., People v.
Drake, supra, 42 Cal.App.4th at pp. 597, 595, [MediCal fraud];
Neder, supra, 16 Cal.App.3d at p. 852 [forgery].) Thus, the
converse Bailey doctrine is inapplicable to appellants’ multiple
convictions for public officer crimes.
We likewise conclude the converse Bailey doctrine does not
apply to Wooten’s multiple convictions for conflict of interest
21
violations. “The object of section 1090[3] of prohibiting individuals
‘from being financially interested in any contract made by them
in their official capacity or by the body or board of which they are
members is to insure absolute loyalty and undivided allegiance to
the best interest of the [government agency] they serve and to
remove all direct and indirect influence of an interested officer as
well as to discourage deliberate dishonesty. [Citations.]’
[Citation.]” (Thorpe v. Long Beach Community College Dist.
(2000) 83 Cal.App.4th 655, 659.) “The evil to be thwarted by
section 1090 is easily identified: If a public official is pulled in one
direction by his financial interest and in another direction by his
official duties, his judgment cannot and should not be trusted,
even if he attempts impartiality.” (Carson Redevelopment Agency
v. Padilla (2006) 140 Cal.App.4th 1323, 1330.) Thus, where a
public official holds a personal interest, criminal liability may
accrue even in the absence of “actual fraud, dishonesty,
unfairness or loss to the governmental entity, and ... without
regard to whether the contract in question is fair or oppressive.”
(People v. Honig (1996) 48 Cal.App.4th 289, 314.)
Akin to the public officer crimes for misappropriation of
public funds, conflict of interest laws regulate the conduct of the
public official and target the manner in which a person exercises
his control over public contracts. Like section 424, subdivision (a),
the converse Bailey doctrine does not apply to conflict of interest
3 Government Code section 1090 provides in relevant part: “[C]ity
officers or employees shall not be financially interested in any contract
made by them in their official capacity, or by any body or board of
which they are members. Nor shall … city officers or employees be
purchasers at any sale or vendors at any purchase made by them in
their official capacity.”
22
violations because the crime’s essence is not concerned with the
dollar amount that a person may profit from a contract. Instead,
Government Code section 1090 is concerned with officials being
financially interested in a contract made by them in their official
capacity. Accordingly, Wooten’s multiple convictions for conflict of
interest cannot be aggregated into a single count of conflict of
interest.
In sum, multiple counts of violations of section 424,
subdivision (a), and Government Code section 1090 were properly
charged against appellants.
2.2.2. Embezzlement of Public Funds
Appellants also argue that the embezzlement of public
funds is a theft offense, and thus the converse Bailey doctrine
would apply to the pre-2014 section 504 offenses in this case.
The Attorney General acknowledges that embezzlement is
essentially a theft offense and that the converse Bailey doctrine
may apply to section 504 offenses under the pre-Whitmer analysis
of the doctrine. However, the Attorney General argues that given
the evidence in this case, the converse Bailey doctrine does not
apply. We agree.
“Bailey does not prohibit multiple convictions where the
defendant commits a series of thefts based on separate intents,
even if the defendant acts pursuant to the same intent on each
occasion. [Citation.]” (Jaska, supra, 194 Cal.App.4th at p. 984.)
“Whether multiple takings are committed pursuant to one
intention, one general impulse, and one plan is a question of fact
for the jury based on the particular circumstances of each case.
[Citations.]” (Id. at pp. 983–984.)
In determining whether appellants’ embezzlement offenses
must be merged under Bailey, we look to several different factors:
23
whether the defendant acted according to a single plot or scheme;
whether the defendant stole a defined sum of money or particular
items of property; whether the defendant committed the thefts in
a short period of time and a similar location; and whether the
defendant employed a single method to commit the thefts. (Jaska,
supra, 194 Cal.App.4th at pp. 984–985.) In evaluating these
factors, “we must review the record to determine whether there is
substantial evidence to support a finding that the defendant
harbored multiple objectives. [Citations.]” (Id. at p. 984.) This
requires a review of “the whole record in the light most favorable
to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”
(People v. Johnson (1980) 26 Cal.3d 557, 578.)
Applying these principles here, we conclude the converse
Bailey doctrine does not require the merger of all of the section
504 convictions for the embezzlements that occurred before 2014;
the jury reasonably inferred that appellants acted pursuant to
more than one intention, impulse, or plan, even though they
embezzled from one victim and had a similar intent for each
offense.
Substantial evidence demonstrated that over ten years,
Wooten stole various sums of money, committed numerous
fraudulent acts, and used distinct methods to steal from the City
while Collins aided and abetted him in various ways. Wooten did
not submit false invoices every time he submitted legitimate
ones. He changed from whom he submitted false invoices, which
addresses he used, whether he altered the amounts and whether
he used authentic or forged signatures. Further, he created
24
hundreds of separate invoices, not just one. Wooten and Collins
employed numerous distinct methods to conceal the thefts by
submitting invoices for numerous types of non-existent (and real)
property addresses. Sometimes they submitted invoices for
$3,750 and, after obtaining the required signatures, altered the
amounts. Other times, they submitted invoices for other amounts
between $20,000 and $43,000 with forged signatures. Collins
provided “kickback” payments to Wooten for some but not all of
the checks he received from the City. Thus, substantial evidence
demonstrates that appellants acted under a new impulse and
intent each time they embezzled funds.
In reaching this conclusion, we observe that the cases
appellants rely on are factually distinguishable. By way of
example, in People v. Packard (1982) 131 Cal.App.3d 622, 625–
627, the defendant was charged with grand theft based on his
single three-year scheme to steal Paramount Studios’ funds by
repeatedly submitting the same fake invoices. In contrast,
Wooten used different methods and multiple vendors to carry out
the crimes.
And in People v. Nilsson (2015) 242 Cal.App.4th 1 (Nilsson),
a facilities superintendent and two others were convicted of
grand theft in a scheme to overbill a city library for maintenance
services. The court concluded that the Bailey doctrine merged
some of the grand theft charges in which the facilities
superintendent had altered minor details of the overbilling
scheme. (Id. at pp. 20–21.) Unlike Nilsson, appellants’ criminal
conduct constituted more than a minor change in the details to
carry out each crime. Here, appellants employed distinct plans,
means, and methods to embezzle from the City and to avoid
25
detection, and Wooten used more than one vendor to carry out his
crimes.
Appellants’ case more closely resembles People v. Woods
(1986) 177 Cal.App.3d 327, 331, where the court concluded that
the converse Bailey doctrine did not require the merger of the
offenses. In Woods, the defendant created 12 different fictitious
persons to use for committing welfare fraud. The evidence
supported a separate count for each fictitious person because
each represented a different intention, general impulse, or plan.
(Id. at pp. 331–332.) Similarly here, even though the intent in
each instance was the same, the creation of false invoices for
various vendors for different properties manifest distinct
impulses and separate schemes. Accordingly, there is substantial
evidence to support appellants’ multiple convictions of
embezzlement of public funds.
3. Appellants were properly convicted of violations of
both section 424, subdivision (a), and section 504.
Appellants also maintain that they cannot be convicted of
both section 504 and section 424, subdivision (a) offenses because
they are merely different statements of the same crime.
Section 9544 “ ‘authorizes multiple convictions for different
or distinct offenses, but does not permit multiple convictions for a
4 Penal Code section 954 governs multiple offenses or multiple
statements of an offense, and provides in relevant part: “An accusatory
pleading may charge two or more different offenses connected together
in their commission, or different statements of the same offense or two
or more different offenses of the same class of crimes or offenses, under
separate counts, and if two or more accusatory pleadings are filed in
such cases in the same court, the court may order them to be
consolidated. The prosecution is not required to elect between the
26
different statement of the same offense when it is based on the
same act or course of conduct.’ ” (People v. Vidana (2016) 1
Cal.5th 632, 650 (Vidana).) Whether statutory provisions “define
different offenses or merely describe different ways of committing
the same offense properly turns on the Legislature’s intent in
enacting these provisions, and if the Legislature meant to define
only one offense, we may not turn it into two.” (People v. Gonzalez
(2014) 60 Cal.4th 533, 537 (Gonzalez).)
In Gonzalez, for example, the defendant was convicted of
oral copulation of an unconscious person in violation of section
288a, subdivision (f), and oral copulation of an intoxicated person
in violation of section 288a, subdivision (i) based on the same act.
(Gonzalez, supra, 60 Cal.4th at p. 536.) In concluding that the
Legislature intended these subdivisions to define separate
offenses, the Supreme Court primarily relied on the structure of
the statute: “Subdivision (a) of section 288a defines what conduct
constitutes the act of oral copulation. [After that], subdivisions (b)
through (k) define various ways the act may be criminal. Each
subdivision sets forth all the elements of a crime, and each
prescribes a specific punishment. Not all of these punishments
are the same. That each subdivision of section 288a was drafted
to be self-contained supports the view that each describes an
independent offense, and therefore section 954 [does not impede]
a defendant’s conviction under more than one such subdivision
for a single act.” (Id. at p. 539.)
different offenses or counts set forth in the accusatory pleading, but
the defendant may be convicted of any number of the offenses
charged ... .”
27
Subsequently, in Vidana, the Supreme Court considered
whether larceny and embezzlement were different offenses or
merely different statements of the same offense. (Vidana, supra,
1 Cal.5th at p. 648.) The court noted that larceny and
embezzlement have different elements and are found in “self-
contained statute[s].” (Ibid.) However, these factors were not
dispositive; instead, the court looked to section 490a, which
provides that any statute that mentions larceny or embezzlement
“ ‘shall hereafter be read and interpreted as if the word “theft”
were substituted therefor.’ ” (Ibid.) The court concluded the
“obvious intent” of section 490a “was to create a single crime of
theft.” (Ibid.) Additionally, the court noted that larceny and
embezzlement “generally have the same punishment.” (Ibid.)
Thus, the court concluded, larceny and embezzlement “are simply
different ways of describing the behavior proscribed by those
statutes” and that only one such conviction based on the same act
could be sustained. (Id. at p. 649.)
Based on Vidana, appellants argue that the section 504
counts and section 424, subdivision (a) counts are all “theft”
crimes and are simply “different statements of the same offense,”
i.e., “theft” of public money or public funds. (Vidana, supra, 1
Cal.5th at pp. 646–651.) They maintain that all of their
convictions under section 504 and section 424, subdivision (a)
involved the same overarching scheme and course of conduct.
Thus, pursuant to Vidana, appellants argue that all but one of
the combined “theft” convictions under both code sections should
be reversed. We disagree.
The misappropriation of public funds and embezzlement by
a public officer are separate offenses. Nothing in Vidana
commands a different result. First, the elements for these crimes
28
differ. As we explained, section 424, subdivision (a) criminalizes
the misappropriation of public funds by public officials charged
with the safe-keeping of that money. Section 504, in contrast,
applies to any public or private officer or employee who
fraudulently appropriates public property for any use or who
secretes public property with a fraudulent intent to appropriate
it. Second, these crimes are not the lesser included offense of the
other, and they are found in “self-contained” statutes. Finally, the
misappropriation of public funds by a public official and
embezzlement of public funds are not different ways of describing
the same behavior. (Vidana, supra, 1 Cal.5th at pp. 648–649.)
Embezzlement is concerned with the theft of public funds, while
the misappropriation of public funds focuses on the abuse of the
public position of trust in relation to the funds. Indeed, the
Supreme Court has explained that section 424 is distinct from
theft offenses such as embezzlement criminalized in section 504.
(People v. Dillon (1926) 199 Cal. 1, 6–7.) Dillon observed that
unlike section 424, subdivision (a), section 504 “does not assume
to regulate the official conduct of public officers in charge of the
public revenue, nor does it command or forbid the doing of the
many acts specially mentioned in section 424 … as safeguards of
the public moneys. On the other hand, the subject matter and the
language of section 424 clearly indicate that the legislative mind
was intently concerned with the single, specific subject of the
safekeeping and protection of public moneys and the duties of
public officers in charge of the same.” (Id. at p. 6; accord,
Hubbard, supra, 63 Cal.4th at p. 389 [affirming Dillon’s
interpretation of the purpose of section 424].)
Here, the convictions under section 424, subdivision (a)
criminalized Wooten’s abuse of his official position, and his
29
failure to protect public funds. In contrast, the section 504
convictions punished appellants’ theft of public funds. Thus,
appellants were properly convicted under both statutes.
4. Section 654 does not apply to the multiple
convictions of section 424, subdivision (a).
Appellants argue that even if this court rejects their other
challenges, we should remand and direct the trial court to stay
the sentences on all section 424, subdivision (a) convictions under
section 654 except one. They maintain that section 654 applies to
the section 424, subdivision (a) convictions because all of those
crimes were committed pursuant to one continuing course of
conduct pursuant to one objective and intent to steal money from
the City through a fraudulent scheme. We disagree.
Section 654, subdivision (a) provides in pertinent part: “An
act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no
case shall the act or omission be punished under more than one
provision.” (§ 654, italics added.) “By its plain language section
654 does not bar multiple punishment[s] for multiple violations of
the same criminal statute.” (See People v. Correa (2012) 54
Cal.4th 331, 334, 341–344 [clarifying that multiple punishments
could be imposed for the multiple convictions based on the same
statute].) We also observe that the cases that appellants cite,
Nilsson and Kronemyer, do not address section 654. Instead,
those cases concern whether the defendant’s conduct should have
been charged as separate offenses or whether the criminal
conduct warranted a single charge. (Nilsson, supra, 242
Cal.App.4th at p. 21; Kronemyer, supra, 189 Cal.App.3d at p.
364.)
30
Here, the trial court properly applied section 654 in
sentencing appellants: the court stayed the sentences on the
section 504 convictions but did not apply it to the multiple
convictions of section 424, subdivision (a). Because the public
officer crimes alleged here are distinct violations of the same
criminal statute, and appellants’ criminal conduct was divisible
and gave rise to multiple acts, the trial court did not err in failing
to stay the sentences on the section 424, subdivision (a)
convictions under section 654.
5. Appellants are entitled to additional custody credits.
On January 11, 2019, the trial court sentenced both
appellants and awarded them custody and conduct credits for the
days they had been in custody pending trial. The court awarded
Collins presentence custody credits of 88 actual custody days plus
88 days of conduct for a total of 176 days of credits. The court
awarded Wooten credit of 136 actual days and 136 days of
conduct for a total of 272 days of credit.
On March 19, 2019, the trial court recalled Wooten’s
sentence, and on April 22, 2019, the court recalled Collins’s
sentence, reducing each sentence by one year under section 1170,
subdivision (d). However, the court imposed the same custody
and conduct credits awarded in the original judgments.
Appellants contend, the Attorney General concurs, and we
agree that the court should have awarded additional custody
credits for the time between the original sentencing and the
resentencing dates. (See People v. Johnson (2004) 32 Cal.4th 260,
263; People v. Buckhalter (2001) 26 Cal.4th 20, 37.)
“As a general rule, a defendant is supposed to have the trial
court correct a miscalculation of presentence custody credits.”
(People v. Jones (2000) 82 Cal.App.4th 485, 493.) However,
31
appellate courts may resolve custody credit issues in the interests
of judicial economy. (Ibid.) If there is no dispute regarding a
calculation error, the appellate court need not remand the matter
for a calculation. (See In re Antwon R. (2001) 87 Cal.App.4th 348,
353.)
In this case, the parties agree that the trial court erred in
failing to grant appellants additional custody credits when they
were resentenced, and they concur on the number of presentence
custody credits that should have been granted: Wooten is entitled
to 67 additional days of custody credits, and Collins is entitled to
102 additional days of custody credits. Thus, we amend the
judgments to correct the custody credits. (See People v. Donan
(2004) 117 Cal.App.4th 784, 792–793 [appellate court has
authority to order the judgment amended to award the correct
amount of custody credits].)
32
DISPOSITION
The judgments are modified to reflect an award of
additional days of presentence custody credits for appellants as
follows: Wooten’s judgment is modified to reflect 203 actual
custody days and 136 conduct days for a total of 339 days of
presentence custody credits; and Collins’s judgment is modified to
reflect 190 actual custody days and 88 conduct days for a total of
278 days of presentence custody credits. As modified, the
judgments are affirmed. Upon issuance of the remittitur, the trial
court shall correct the abstracts of judgment and send certified
copies of the corrected abstracts of judgment to the Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
SALTER, J.*
* Judge of the Orange County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
33