People v. Reed CA2/1 ( 2020 )

Filed 11/2/20 P. v. Reed CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B299443
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA451382)
v.
EDWARD REED
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Kennedy, Judge. Affirmed.
William G. Holzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________
A jury convicted Edward Reed of four counts of grand theft
under Penal Code section 487, subdivision (a),1 for Reed’s
improper receipt of Medi-Cal and Denti-Cal benefits (count 1),
services provided through In-Home Supportive Services (IHSS)
(count 2), Supplemental Security Income (SSI) (count 3), and
Section 8 (42 U.S.C. § 1437f) housing assistance administered
through the Housing Authority of the City of Los Angeles
(HALAC) (count 4). The jury also convicted Reed of nine counts
of perjury (§ 118, subd. (a)) as a result of his HALAC application
and annual renewal forms (counts 5 to 13) and found true a
special allegation pursuant to section 12022.6, subdivision (a)(2),
that he obtained more than $200,000. Reed admitted a prior
felony conviction.2
The trial court sentenced Reed to 10 years for counts 1
through 4, plus a two-year sentence enhancement required under
section 12022.6, for a total of 12 years in state prison. The trial
court also sentenced Reed to three years for each perjury count,
counts 5 through 13, but stayed each of these sentences under
section 654.
On appeal, Reed argues section 654 also required the trial
court to stay the sentences on counts 2 through 4.3 In particular,
1 All unspecified statutory references are to the Penal Code.
2The jury also determined the criminal violations alleged
in counts 1 through 12, which occurred during the time period
between August 2008 through March 26, 2015, were not
discovered until August 3, 2015.
3 Reed raises this argument for the first time on appeal.
Failing to raise a section 654 objection in the trial court does not
2
Reed argues each of these thefts were part of an indivisible
course of conduct which he committed pursuant to a single
objective: “to obtain taxpayer money that was supposed to go to
low-income individuals.” We conclude Reed harbored separate
objectives in committing each of the four grand thefts, against
four different victims, by which he received four distinct
government benefits. Accordingly, section 654 does not apply to
counts 2 through 4. We thus affirm.
BACKGROUND
A. Reed and Brenda Tuttle4
At the time of trial, Reed was a 64-year-old man. He
testified he was illiterate and had a third-grade education,
although he admitted he had once enrolled in high school.5 He
also testified that he took medication for depression, seizures,
and hearing voices and had physical disabilities related to his
knees, an ankle, and a wrist.
In 2009, while he was attending Maxine Waters
Preparatory School, Reed met Brenda Tuttle. According to their
marriage license, they were married on July 9, 2009 in Las
Vegas, Nevada. At trial, Reed denied being married to Tuttle and
waive this argument for purposes of appeal. (People v. Perez
(1979) 23 Cal. 3d 545, 549, fn. 3.)
4 Reed does not challenge the jury’s verdict or the trial
court’s sentencing on any other basis. We limit our recitation of
facts to those relevant to the issues on appeal.
5 In his 2006 HACLA application, Reed stated he had a
fifth-grade education. In his 2009, 2012, 2013, 2014, 2015, 2016,
and 2017 HACLA eligibility questionnaires, Reed indicated he
had an 11th grade education.
3
contended he first became aware of the marriage license when
Tuttle presented it during their divorce proceedings.6 During
their marriage, Reed and Tuttle did not live together. The family
law court granted dissolution of their marriage on May 5, 2016.
During the process of their divorce, Tuttle discovered that
on May 31, 2013, Reed had $94,812.42 in a bank account. In
2015, Tuttle provided this information to HACLA. HACLA, in
turn, notified Medi-Cal, and Medi-Cal notified the Social Security
Administration (SSA).
B. Medi-Cal and Denti-Cal Benefits (Count 1)
From 2008 through 2016, Medi-Cal paid $84,374.56 for
Reed’s medical and dental insurance. At trial, Lisa Meraz-
Vasquez, a fraud investigator for the California Department of
Health Care Services (DHCS), which oversees Medi-Cal, testified
that an individual is not eligible for Medi-Cal if he has more than
$2,000 in assets if single or $3,000 if married. She further
testified that she obtained Reed’s bank records from Wells Fargo,
Bank of America, JPMorgan, and Union Bank, and that due to
the amount of money in Reed’s bank accounts, he was ineligible
to receive Medi-Cal or Denti-Cal benefits. The record does not
reflect that Reed filed a specific application to obtain Medi-Cal
benefits. Meraz-Vasquez testified that an SSI recipient in
California is automatically enrolled in Medi-Cal.
C. IHSS Benefits (Count 2)
IHSS provides in-home caregiving services to disabled
persons who are eligible for Medi-Cal. Although IHSS is a Medi-
6 Reed also testified that Tuttle “asked me to marry her,
and I married her,” and identified her as his fiancée in a HACLA
eligibility questionnaire.
4
Cal program, it is administered by the Los Angeles County
Department of Public Social Services (DPSS), and Reed
separately applied for IHSS services on or about December 17,
2007. Reed indicated on his application that he was a recipient of
SSI or social security pension benefits. According to Meraz-
Vasquez, one method to establish eligibility for Medi-Cal, under
which IHSS services are provided, was to receive SSI.
Miesha Moss, a social worker for IHSS, worked with Reed
for two or three years. Moss testified that IHSS benefits must be
renewed annually. As part of the renewal process, IHSS required
Reed to submit two forms each year: a recipient/employer
responsibility checklist, which is a form provided by the
California Department of Social Services; and an
applicant/recipient rights and responsibilities, which is a form
provided by DPSS.
The first item on the recipient/employer responsibility
checklist advised Reed to “[p]rovide required documentation to
[his] [s]ocial [w]orker to determine continued eligibility and need
for services. Information to report includes, but is not limited to,
changes to [his] income, household composition, marital status,
property ownership, phone number, and time [he is] away from
[his] home.” The second form, the applicant/recipient rights and
responsibilities, also advised Reed that he must inform his social
worker of any changes that may affect his eligibility or need for
services. Moss testified she did not only provide the forms to
Reed. Rather, she also “verbally [sic] explain[ed] to him that he
needs to let [IHSS] know any changes that occur whether it’s
income, household changes,” and that before either of them
signed the forms, she “ask[ed] if any changes occurred [since] the
last time a social worker came out.”
5
Reed was not eligible for IHSS services because “he had too
much money.” Accordingly, Reed received $50,883.22 in
caregiving services through IHSS to which he was not entitled.
D. SSI (Count 3)
Reed received monthly SSI payments during the period
October 2008 through December 2015 and September 2016
through December 2016. At trial, SSA employee Liselda
Gutierrez testified that the SSA conducts randomly-selected
continuing eligibility reviews. During such reviews, an SSA
employee asks the recipient, either in person or by phone, about
his or her income, resources, and living arrangements. The SSA
employee also advises the recipient both at the beginning and at
the end of the interview that the recipient must provide truthful
answers under penalty of perjury. SSA memorializes each
eligibility review interview in a document called a
“redetermination summary,” which is provided to the recipient.
The redetermination summary also advises the recipient that
changes that may affect his or her eligibility for or amount of
benefits, such as the value of the recipient’s resources exceeding
$2,000, must be reported to the SSA within 10 days of occurrence.
Reed participated in such eligibility reviews on June 23,
2011; December 14, 2011; and January 30, 2013. According to
the June 23, 2011 redetermination summary, Reed’s resources
consisted of $10 in cash and $100 in a Bank of America account.
According to the December 14, 2011 redetermination summary,
Reed’s resources consisted of $10 in cash, $375 in a Bank of
America account, and $300 in a JPMorgan Chase Bank account.
According to Reed’s January 30, 2013 redetermination summary,
Reed’s resources consisted of $10 in cash and $50 in a JPMorgan
Chase Bank account.
6
Gutierrez further testified that she was tasked with
determining how much SSA had overpaid Reed. To do so, she
was provided with Reed’s bank account statements. Gutierrez
used these statements to identify each month that Reed had
funds in his bank accounts in excess of $2,000, making him
ineligible for SSI. Gutierrez totaled the payments to Reed during
the months that he was ineligible and concluded the SSA
overpaid SSI to Reed in the amount of $80,141.28.
E. HACLA (Count 4) and Perjury on HACLA
Applications (Counts 5 to 13)
HACLA receives federal funding that it uses to provide
housing benefits to low income individuals. In October 2006,
Reed applied to HACLA for housing assistance. The application
asked Reed to report any bank accounts. In response, he wrote,
“N/A.” The application also included a certification, signed by
Reed, that all the information Reed provided to HACLA was
accurate and complete and that he understood that he had to
“report all changes in family composition, income, assets, and
expenses of any family member(s)” within 30 days of the change.
Further, the certification stated that Reed understood that trying
to obtain public housing by providing false information was a
crime.
For each year during the period 2007 through 2017, Reed
submitted a HACLA eligibility questionnaire that never reported
bank account balances greater than $400. Like the original
application, each questionnaire required Reed to certify that all
the information he provided was accurate and complete; that he
would “report any changes in family composition, income, assets,
and expenses of any family member(s)” within 30 days; and that
he understood trying to obtain public housing by providing false
7
information was a crime. For each year, 2007 through 2017,
Reed signed the certification page.
Notwithstanding these certifications, the evidence at trial
demonstrated that at the times Reed submitted the eligibility
questionnaires, Reed had significantly more money in his bank
accounts. For example, in March 2013, Reed reported in his
eligibility questionnaire that he had $63 in a Chase bank
account. Bank records presented at trial, however, demonstrated
that in March 2013, Reed had a bank account with a balance
between $60,006.22 to $63,011.57. HACLA concluded it provided
$60,380 in benefits to Reed that he should not have received.
F. Verdict and Sentencing
On August 14, 2018, the jury found Reed guilty of four
counts of grand theft of Medi-Cal, IHSS, SSI, and HACLA
benefits and nine counts of perjury related to HACLA
applications. The jury also found true the special allegation
under section 12022.6 that the thefts were part of a common
scheme or plan with losses exceeding $200,000.
Prior to sentencing, Reed admitted his prior felony
conviction and moved to strike it. In his motion to strike the
prior felony conviction, Reed argued that persons who committed
similar crimes had been given probation if they were able to
make monetary restitution. Reed also argued that because of his
age, disability and mental illness, a prison sentence would
amount to cruel and unusual punishment. The trial court denied
Reed’s motion to strike.
On November 6, 2018, the People filed a supplemental
sentencing memorandum in which they argued section 654 did
not preclude the imposition of consecutive punishments for each
count. The People also advised the trial court that Reed could be
8
sentenced to a maximum of 31 years and four months and
recommended a sentence of 21 years and four months. Although
Reed also filed a sentencing memorandum on June 5, 2019, none
of his arguments addressed section 654.
During a sentencing hearing on January 4, 2019, Reed
again urged the trial court to impose probation rather than a
sentence in state prison and offered to pay $100,000 in
restitution. The trial court indicated that it would take into
account Reed paying restitution in sentencing him, and continued
the sentencing hearing to allow Reed to make the payment. In
May 2019, Reed paid a total of $100,000 as follows: (1) $30,594.98
to DHCS; (2) $18,450.72 to DPSS; (3) $29,059.96 to SSA; and
(4) $21,894.34 to HACLA.
At the July 2, 2019 sentencing hearing, the trial court
denied Reed’s request to be placed on probation on the basis that
“[t]he excessive taking . . . allegation makes him ineligible for
probation,” and Reed’s history did not make him amenable to
probation. Among other things, the trial court stated that Reed
“has a lot of trouble with the truth, and it has permeated his life
for years.” Further, the trial court explained that Reed has not
demonstrated gainful employment and that the $100,000 he used
for restitution was likely money he obtained from his “scams.”
Therefore, the trial court determined time in state prison was
warranted, but also concluded that 21 years was “excessive.”
The trial court sentenced Reed to the high term of three
years for count 1, on the basis of certain aggravating factors
including planning and sophistication. For the grand theft
convictions for counts 2, 3, and 4, the trial court imposed a
consecutive one-third the midterm sentence of eight months for
each. The trial court then doubled this five-year sentence due to
9
Reed’s prior felony strike and added two years to the sentence
based on the section 12022.6 enhancement. The trial court found
the perjury counts 5 through 13 were subject to section 654,
because the perjury was committed “with the specific goal of
perpetuating the thefts; and therefore, they are not subject to
being punished separately because they are part of that scheme.”
Accordingly, the trial court sentenced Reed to a total of 12 years.
Reed timely appealed his sentence.
DISCUSSION
Reed argues the trial court should have also stayed his
sentences for counts 2 through 4 under section 654.
Alternatively, Reed argues the sentences on counts 2 and 3
should be stayed because both those counts and count 1 flowed
from obtaining SSI. Reed also argues count 2 should be stayed
because it had the same named victim as count 1. We conclude
section 654 does not apply to any of counts 2, 3 or 4.
A. Section 654
Section 654, subdivision (a), states, in 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. . . .”
In interpreting section 654, our Supreme Court explained
the touchstone to determining the statute’s applicability is the
intent and objective of the defendant: “ ‘Whether a course of
criminal conduct is divisible and therefore gives rise to more than
one act within the meaning of section 654 depends on the intent
and objective of the actor. If all of the offenses were incident to
one objective, the defendant may be punished for any one of such
10
offenses but not for more than one.’ ” (People v. Latimer (1993) 5
Cal. 4th 1203, 1208, quoting Neal v. State of California (1960) 55
Cal. 2d 11, 19.) Thus, “[i]f [a defendant] entertained multiple
criminal objectives which were independent of and not merely
incidental to each other, he may be punished for independent
violations committed in pursuit of each objective even though the
violations shared common acts or were parts of an otherwise
indivisible course of conduct.” (People v. Beamon (1973) 8 Cal. 3d
625, 639, italics added.)
However, our Supreme Court also recognized that
“[b]ecause of the many differing circumstances wherein criminal
conduct involving multiple violations may be deemed to arise out
of an ‘act or omission,’ there can be no universal construction
which directs the proper application of section 654 in every
instance.” (People v. Beamon, supra, 8 Cal.3d at p. 636.)
Accordingly, “a course of conduct divisible in time, although
directed to one objective, may [also] give rise to multiple
violations and punishment.” (Id. at p. 639, fn. 11.) “This is
particularly so where the offenses are temporally separated in
such a way as to afford the defendant opportunity to reflect and
to renew his or her intent before committing the next one,
thereby aggravating the violation of public security or policy
already undertaken.” (People v. Gaio (2000) 81 Cal. App. 4th 919,
935.)
Appellate courts have also found that separate sentences
for unlawful acts committed “at different times for different
amounts of money [against] different victims . . . is not prohibited
by . . . section 654.” (People v. Lochmiller (1986) 187 Cal. App. 3d
151, 153.) To treat such crimes as serving one broad objective
would be contrary to section 654’s “ ‘ “purpose to [e]nsure that a
11
defendant’s punishment will be commensurate with his
culpability. [Citation.] It would reward the defendant who has
the greater criminal ambition with a lesser punishment.” ’ ”
(People v. DeVaughn (2014) 227 Cal. App. 4th 1092, 1116; see
People v. James (1977) 19 Cal. 3d 99, 119 [finding § 654 did not
prohibit multiple sentences for breaking into three offices in one
building]; Lochmiller, supra, at pp. 153-154 [finding § 654 does
not limit punishment of defendant selling unregistered securities
to 11 victims at 10 different times].)
B. Standard of Review
“Whether section 654 applies in a given case is a question
of fact for the trial court, which is vested with broad latitude in
making its determination. [Citations.] Its findings will not be
reversed on appeal if there is any substantial evidence to support
them. [Citations.]” (People v. Jones (2002) 103 Cal. App. 4th 1139,
1143.) However, “the applicability of [section 654] to conceded
facts is a question of law.” (People v. Harrison (1989) 48 Cal. 3d
321, 335.) Regardless of whether we apply a substantial evidence
or de novo standard of review, we conclude the trial court did not
err in its sentencing of Reed.
C. The Trial Court Did Not Err in Its Sentencing of
Reed
Because Reed did not argue in the trial court that section
654 required the trial court to stay the sentences for counts 2
through 4, the trial court did not make an express ruling on the
issue. The trial court was certainly aware of section 654,
however, as it stayed the sentences on counts 5 through 13 under
this section. Thus, implicit in the trial court’s sentencing is the
determination that Reed’s thefts were part of a divisible course of
12
conduct and/or that Reed had several objectives in committing
these thefts. (People v. Beamon, supra, 8 Cal. 3d 625.)
The grand thefts articulated in counts 1 through 4 were
part of a divisible course of conduct for which Reed had separate
objectives. As described in more detail below, during the period
2008 through 2016, Reed committed separate acts at different
points of time to obtain and use four types of benefits from four
victims. Thus, section 654 does not apply to counts 2 through 4.
The evidence at trial demonstrated that Reed sought to
obtain and did obtain four distinct benefits: medical and dental
insurance, in-home caregiving services, supplemental income,
and housing. To acquire three of these benefits—IHSS, SSI, and
HACLA—Reed submitted separate, agency-specific applications
on different dates. Reed applied for HACLA benefits in October
2006. Then, over a year later, in December 2007, Reed applied
for housing assistance from IHSS. While the record does not
contain a separate SSI application, there is no evidence that an
IHSS or HACLA application could or did automatically trigger
Reed’s SSI benefits. Further, Reed’s IHSS application indicated
that he was an SSI recipient, from which we infer that he had
previously applied for SSI. Accordingly, we may reasonably infer
Reed separately applied to receive SSI. (See People v. Carpenter
(1999) 21 Cal. 4th 1016, 1046 [“ ‘[a]n order is presumed correct; all
intendments are indulged in to support it on matters as to which
the record is silent, and error must be affirmatively shown’ ”].)
After submitting the initial applications, Reed also
participated in separate eligibility renewals for SSI, IHSS, and
HACLA with representatives of each government agency on
different dates. At trial, Moss testified that IHSS required its
recipients to renew their eligibility for their IHSS benefit
13
annually. As part of this renewal process, Reed was required to
submit two IHSS-specific forms in which he acknowledged he had
to advise his social worker of any changes that would affect his
eligibility. For SSI, Reed had an obligation on at least three
occasions when SSA conducted an eligibility interview to report
his resources to SSA truthfully, but failed to do so
notwithstanding his execution of SSA-specific certifications to the
contrary. For HACLA, Reed renewed his eligibility nine times,
again submitting agency-specific renewal forms, but failed to
truthfully report his bank account balances on any of those
occasions or at any other time. That Reed committed separate
acts to apply for and renew these three public benefits for low
income recipients is substantial evidence that he had separate
objectives to obtain each of those benefits.
We acknowledge that as an SSI recipient, Reed was
automatically enrolled to receive medical and dental insurance
through Medi-Cal. However, Reed affirmatively used the Medi-
Cal and Denti-Cal benefits and thus evinced a separate intent to
steal from this program as well.
Our conclusion is also supported by the fact that Reed
committed each count of grand theft against separate victims.
Specifically, DHCS through its Medi-Cal program paid for Reed’s
medical and dental benefits. While Medi-Cal provided funds for
the IHSS program, it was administered by DPSS. SSA paid SSI
to Reed. HACLA provided housing assistance to Reed. As
further evidence that these are separate victims, in making
partial restitution, Reed issued separate checks made out to
DHCS, DPSS, SSA and HACLA. Further, each agency is part of
a different level of government: the SSA is a federal agency;
Medi-Cal is a state program; IHSS is administered by the County
14
of Los Angeles; and HACLA provides assistance from the City of
Los Angeles.7
Reed argues he had a common intent and objective: “to
obtain taxpayer money that was supposed to go to low-income
individuals.” We decline to adopt Reed’s broad framing of his
objective. None of Reed’s thefts was merely incidental to another.
By way of a contrasting example, Reed’s perjury on his HACLA
applications and eligibility questionnaires was incidental to his
objective to steal housing assistance benefits. He would not have
been able to receive the HACLA benefits without this perjury.
Thus, the trial court properly stayed the sentences relating to
Reed’s perjury convictions and properly declined to stay the
sentences on counts 2 through 4. To accept Reed’s broad
definition of his objective and intent would be contrary to section
654’s “ ‘ “purpose to [e]nsure that a defendant’s punishment will
be commensurate with his culpability” ’ ” and “ ‘ “would reward
the defendant who has the greater criminal ambition with a
lesser punishment.” ’ ” (People v. DeVaughn, supra, 227
Cal.App.4th at p. 1116.)
D. The Jury’s Finding that Reed Committed the Thefts
Pursuant to a Common Scheme or Plan for Purposes
of Section 12022.6 Does Not Affect the Court’s
Section 654 Analysis
Reed also argues that the jury’s finding that the thefts were
committed pursuant to a common plan or scheme under section
12022.6 “represents substantial evidence that the thefts were
7 Althoughthe testimony at trial was that IHSS falls under
the Medi-Cal umbrella, Reed separately applied for IHSS and
each year, renewed his eligibility for IHSS.
15
part of an indivisible course of conduct that may only be punished
once.”
Prior to January 1, 2018,8 section 12022.6 provided: “When
any person takes . . . property in the commission . . . of a felony,
with the intent to cause that taking . . . , the court shall impose
an additional term as follows: [¶] . . . [¶] . . . If the loss exceeds
two hundred thousand dollars ($200,000), 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.” (Id., subd. (a)(2).) “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. . . .” (Id., subd. (b), italics added.)
The People argue that applying section 654 in these
circumstances would undermine section 12022.6’s purpose to
“deter large-scale crime.” (People v. Bowman (1989) 210
Cal. App. 3d 443, 447; see, e.g., Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 939 (1991-1992
8 Section 12022.6 included a sunset clause and was
repealed by its own terms on January 1, 2018. (§ 12022.6,
subd. (f).) In People v. Medeiros (2020) 46 Cal. App. 5th 1142,
1157, the appellate court concluded that “the text of [section
12022.6] and its legislative history demonstrate with sufficient
clarity that the Legislature intended its provisions to apply to
defendants who committed their crimes before January 1, 2018.”
Accordingly, the trial court properly imposed a two-year
enhancement in sentencing Reed even though he was sentenced
after section 12022.6 was repealed.
16
Reg. Sess.) [“The purpose of this bill is to deter white collar
criminals by imposing additional terms based upon the property
loss suffered”].) We agree. Where the statute clearly seeks to
increase a defendant’s punishment for multiple takings with
aggregate losses over the prescribed amounts, it would defeat the
purpose of both section 12022.6 and section 654 if the
enhancement were instead used to lessen a defendant’s
punishment by invoking section 654.
Moreover, a “ ‘common scheme or plan’ ” as used in section
12022.6 is determined by whether the thefts have “ ‘common
features’ ” that “ ‘indicate the existence of a plan rather than a
series of similar spontaneous acts,’ ” although the plan “ ‘need not
be distinctive or unusual.’ ” (People v. Green (2011) 197
Cal. App. 4th 1485, 1502.) Thus, a common plan is not the same
as a single act, a single objective, or an indivisible course of
conduct. A defendant may commit separate and distinct acts of
theft, even if committed pursuant to a single overarching scheme.
(See People v. Whitmer (2014) 59 Cal. 4th 733, 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”].)
17
DISPOSITION
The trial court’s July 2, 2019 order is affirmed.
NOT TO BE PUBLISHED
SINANIAN, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
18