Filed 8/14/15 P. v. Boyd CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059327

v.                                                                       (Super.Ct.No. FSB1200342)

CHARLES NELSON BOYD,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed.

         Kevin Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff

and Respondent.




                                                             1
       Following a jury trial, defendant was convicted of grand theft (Pen. Code,1 § 487,

subd. (a)) and the jury found that he had taken property worth more than $200,000

(§ 12022.6, subd. (a)(2)). The trial court imposed and suspended a sentence of three

years four months and placed defendant on five years’ formal probation. Defendant

appeals, contending: (1) the jury committed judicial error by convicting him of the

wrong count; (2) there was insufficient evidence that he had the requisite intent to steal

under any theory advanced by the prosecution; and (3) we should remand for an

evidentiary hearing on whether defendant actually owes the sum of $466,311 or any part

thereof as restitution. We reject defendant’s claims and affirm.

                        I. FACTS AND PROCEDURAL HISTORY

       Defendant and appellant Charles Nelson Boyd, a California licensed life and

health insurance agent, owned and operated Consumer Driven Benefits Association

(CDBA), a group benefits association that offered members benefit packages such as life

and accidental death insurance, hospital indemnity, limited supplemental medical

insurance, and disability income. In May 2007, defendant obtained a group medical

insurance policy from United States Life Insurance Company (U.S. Life) through a sales

and marketing company called International Marketing Administration Company

(IMAC). The two entered into an organization agreement which provided that defendant

was not allowed to offer the limited medical benefits to new groups he brought into

CDBA unless he first obtained IMAC’s permission. Defendant was also not permitted to


       1   All further statutory references are to the Penal Code unless otherwise indicated.

                                              2
subcontract the invoicing and billing for premiums that were to be remitted to U.S. Life

through IMAC; he was required to handle those administrative matters in-house. IMAC

handled U.S. Life’s billing as an intermediary through its affiliate, NBFSA

Administrative Services (NBFSA). Each month, defendant would send to NBFSA the

number of CDBA members who had subscribed to U.S. Life’s health insurance policy as

part of a lifestyle benefits package. NBFSA would remove any members from the list

who were no longer covered, add any new subscribers, and invoice defendant for the

amount owed to U.S. Life. Defendant, in turn, would send payment to IMAC.

       Cinergy Health, Inc. (Cinergy), like CDBA, was a large consumer benefits

corporation and a competitor of CDBA. However, Cinergy had a questionable reputation

within the insurance industry. A number of state regulatory agencies across the nation

had commenced investigations into Cinergy’s practice, and one state had levied a

significant fine against the company. Sometime in 2009, Cinergy’s insurance carrier

terminated its association with Cinergy, leaving Cinergy to find a new insurance carrier.

In the summer of 2009, U.S. Life had decided not to do any type of business with

Cinergy (including selling insurance to it) because of Cinergy’s business practices.

       In mid-2009, CDBA started to experience a slight decline in business. When

defendant learned about Cinergy’s predicament, he offered to provide Cinergy with

insurance certificates under his group master policy with U.S. Life. Defendant testified

that he had checked with his attorney and understood that, because he was not setting up

a separate marketing organization but simply transferring members into his, he could


                                             3
legally accept the Cinergy members. By adding the Cinergy group, defendant now had to

manage the supplemental health insurance for an additional 5,500 to 6,000 members. He

collected the premiums from Cinergy and was to remit them to U.S. Life through IMAC.

       In September 2009, defendant applied directly to U.S. Life2 to become an agent

for that company. U.S. Life appointed him as an agent and entered into an organization

agreement with CDBA. As with defendant’s organization agreement with IMAC,

defendant was not authorized to market insurance products to any groups without first

obtaining approval from U.S. Life.

       In October 2009, IMAC and U.S. Life learned that defendant had brought the

Cinergy group into CDBA and that he had issued insurance certificates to Cinergy

members without obtaining the approval of IMAC or U.S. Life. U.S. Life agreed to

cover Cinergy members for one month, until December 15, 2009, in order to give

defendant time to find a different carrier to cover those members, and took steps to

terminate the policy. U.S. Life amended the organization agreement with defendant, such

that U.S. Life was able to terminate insurance coverage with 30 days’ notice instead of

the standard 120 days. Defendant was to provide proof to U.S. Life that he had found a

new carrier for Cinergy members.

       Defendant failed to fulfill U.S. Life’s requirements. He received premium

payments from Cinergy and remitted those payments to IMAC to be passed on to U.S.



       2  AIG Benefit Solutions (AIG) is a holding company and one of the companies
that it owns is U.S. Life.

                                             4
Life in November and December 2009. Meanwhile, because defendant had failed to

comply with U.S. Life’s requests, U.S. Life terminated the group master policy it had

issued to CDBA, and terminated defendant’s appointment as an agent for U.S. Life in

December 2009. In January 2010, U.S. Life confirmed the termination with defendant;

however, as a courtesy to the Cinergy group, it continued to insure that group for one

more month, until February 15, 2010. Defendant was to continue to remit the premiums

he received from Cinergy to U.S. Life. In January and February 2010, defendant

received additional premium payments from Cinergy; however, he failed to remit

$466,431.20 of those payments to IMAC or U.S. Life. Defendant never disputed or

contested the invoices he received from NBFSA. Thus, U.S. Life was unaware that

defendant had any dispute with the billing and the amount of premium he was to pay to

U.S. Life.

       In his defense, defendant claimed that he had received advice from an attorney that

he did not need to comply with the terms of his organization agreements with U.S. Life or

IMAC and obtain their permission before issuing certificates of insurance to Cinergy. He

also claimed he believed he was being overcharged by IMAC for the insurance benefits

U.S. Life provided to the Cinergy group. He noted receipt of a letter from IMAC dated

March 5, 2010, which included a payment of $1,465.18, representing overpaid premium

on the U.S. Life business. He claimed that he asked IMAC for an audit; otherwise, he

always paid his bills. Defendant’s letter dated March 13, 2010, to IMAC noted the




                                            5
March 5, 2010, letter, the refund check, and defendant’s request for audit reports in order

to determine if he actually owed any monies to U.S. Life.

                                     II. DISCUSSION

A. The Jury’s Verdict Is Valid

       When the jury returned its verdict on April 8, 2013, the verdict form submitted to

the court indicated the jury had acquitted defendant of count 1, embezzlement by an

agent under section 508, and found the special allegation not true. However, the jury also

submitted another form indicating it was convicting defendant of grand theft, but also

identifying this count as count 1, rather than count 2, and finding the special allegation

true. Defendant asserts that the jury’s verdict is fundamentally flawed because there is

both a “GUILTY” and “NOT GUILTY” verdict on count 1, but no verdict on count 2,

although that may have been the jurors’ intention. Furthermore, defendant claims that

when the jury was polled, it repeated its “GUILTY” verdict on count 1, even though it

had just found defendant “NOT GUILTY” and acquitted him on count 1. Thus,

defendant contends the jury committed judicial error by convicting him of the wrong

count and such error warrants reversal. We disagree.

       1. Further Background Information

       The prosecution charged defendant with embezzlement (§ 508) in count 1 and

grand theft (§ 487, subd. (a)) in count 2. As to both counts, the prosecution alleged a




                                              6
white collar crime enhancement3 (§ 186.11, subd. (a)(3)) and a great takings4

enhancement (§ 12022.6, subd. (a)(2)). The jury received two verdict forms for the

embezzlement charge (count 1), which provided the following:

          Verdict 1A: “We, the jury in the above-entitled action, find the defendant,

CHARLES NELSON BOYD, GUILTY of EMBEZZLEMENT as charged in Count 1.”

          Verdict 1B: “We, the jury in the above-entitled action, find the defendant,

CHARLES NELSON BOYD, NOT GUILTY as to Count 1.”

          The jury also received two verdict forms for the grand theft charge (count 2),

which provided the following:

          Verdict 2A: “We, the jury in the above-entitled action, find the defendant,

CHARLES NELSON BOYD, GUILTY of GRAND THEFT, as charged in Count 1

[sic].”

          Verdict 2B: “We, the jury in the above-entitled action, find the defendant,

CHARLES NELSON BOYD, NOT GUILTY as to Count 2.”

          The jury returned Verdict 1B and Verdict 2A. However, a closer look at

Verdict 2A notes that the charge of grand theft was mistakenly identified as being

“charged in Count 1.”




          3
         I.e., both the embezzlement and grand theft were part of pattern of white collar
criminal conduct.

          4   I.e., both crimes resulted in a loss of property worth more than $200,000.

                                                 7
       In relevant part, the court clerk read the verdict: “We the jury in the above-

entitled action find the defendant not guilty as to Count 1. Signed and dated by the

foreperson. [¶] We the jury in the above-entitled action find the defendant Charles

Nelson Boyd guilty of grand theft as charged in Count 1. Dated and signed by the

foreperson.” (Italics added.) The trial court polled the jury, inquiring as to whether those

were their verdicts, and they all replied in the affirmative.

       2. Analysis

       To begin with, we note that defendant failed to object to the verdict form in the

trial court and thus he has forfeited this issue. (People v. Bolin (1998) 18 Cal.4th 297,

330 [defendant forfeited claim of error related to verdict form that contained incorrect

code section reflecting prior serious felony conviction on a section 667 finding and, in

any event, the erroneous form used by the jury to reflect their finding was not

prejudicial]; People v. Webster (1991) 54 Cal.3d 411, 446.) “In any event, technical

defects in a verdict may be disregarded if the jury’s intent to convict of a specified

offense within the charges is unmistakably clear, and the accused’s substantial rights

suffered no prejudice. [Citations.]” (People v. Webster, supra, at p. 447.) As part of this

analysis, “[a] verdict is to be given a reasonable intendment and be construed in light of

the issues submitted to the jury and the instructions of the court. It must be upheld when,

if so construed, it expresses with reasonable certainty a finding supported by the evidence

[citation].” (People v. Radil (1977) 76 Cal.App.3d 702, 710.)




                                              8
       The trial court has the power to correct clerical errors made in rendering criminal

verdicts. (People v. Harders (1962) 201 Cal.App.2d 795, 798-799.) In Harders, the jury

returned two verdicts finding defendant guilty of robbery “‘as charged in Count I’” and

conspiracy “‘as charged in Count II.’” Originally, the indictment charged the defendant

with robbery (count I) and conspiracy (count IV). Counts II and III charged other

persons with robberies. (Id. at p. 798.) During trial, the indictment was amended to

delete the charges in counts II and III, leaving only counts I and IV against defendant.

(Ibid.) The jury found defendant guilty, by separate verdicts of robbery and conspiracy;

however, the verdict for conspiracy mistakenly identified the charge as count II. (Ibid.)

In considering defendant’s claim that there was an error in the verdict, the trial court

stated: “The jury found defendant guilty, by separate verdicts, of both robbery and

conspiracy. The fact that the conspiracy verdict referred to Count II of the indictment is

immaterial, and did not render the verdict invalid. The form of the verdict is unimportant

where as here the jury has unmistakably expressed its intention to convict the defendant

of the crime of conspiracy. [Citations.] Moreover, when the verdicts were returned,

defendant’s counsel pointed out the numerical inconsistency but made no objection to the

correction of the record to show that Count II in the verdict form referred to Count IV of

the indictment.” (Id. at pp. 798-799.)

       Here, based on the record before this court, the jury’s intent to convict defendant

of grand theft is unmistakably clear. The information charged defendant with

embezzlement in count 1 and grand theft in count 2. The jury was instructed on both


                                              9
embezzlement and grand theft. And, in closing argument, the prosecutor identified count

1 as the embezzlement charge and count 2 as the theft charge. The flaw in the above

forms is found in the misidentification of the grand theft charge as being count 1 in

Verdict 2A. However, the count specifically identified the charge as “grand theft.”5

Such designation trumps the typographical error of identifying the charge as being count

1. Moreover, the jury did not use Verdict 2B (not guilty of count 2), instead indicating

they had found defendant guilty of count 2, grand theft.

       The jurors must have understood there were two charges, embezzlement and grand

theft, and there is no dispute that the jurors convicted defendant of grand theft only as

stated in Verdict 2A, even though it was misidentified as being count 1. Additionally,

defendant failed to object to the verdict forms and he did not raise any issue when the

Verdict 2A was read, misidentifying the grand theft charge as being count 1. Thus, the

minute order correctly notes that defendant was convicted of grand theft as alleged in

count 2. Such correction was to the form of the verdict, not the verdict itself. (Cf. People

v. Trotter (1992) 7 Cal.App.4th 363, 369-370.) Because defendant was not prejudiced by

the defective verdict form, we need not reverse his conviction of grand theft.




       5  Defendant’s briefing omits the fact that while Verdict 2A incorrectly referred to
count 1, it correctly referred to the charge of grand theft. Likewise, defendant fails to
note that when the clerk read the verdict that incorrectly referred to count 1, it correctly
referred to a finding of guilt as to the charge of grand theft. Defendant states, “Nowhere
did the jury ever state its intention to convict [defendant] of Count 2—not on the verdict
form, not when polled in open court.” However, the jury did state its intention to convict
defendant of grand theft both in Verdict 2A and when polled.

                                             10
B. The Evidence Supports Defendant’s Conviction of Grand Theft

       Defendant contends the evidence is insufficient to support his conviction of grand

theft. He argues that the evidence fails to show he had the requisite intent to steal

because he disputed what IMAC claimed he owed and he requested an audit to verify the

correct amount. Thus, he asserts that he was willing to pay what was owed to IMAC,

demonstrating a lack of any intent to steal. We find sufficient evidence to support the

jury’s verdict.

       1. Standard of Review

       “Our task is clear. ‘On appeal we review the whole record in the light most

favorable to the judgment to determine whether it discloses substantial evidence––that is,

evidence that is reasonable, credible, and of solid value––from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard

of review is the same in cases in which the People rely mainly on circumstantial

evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds

that circumstantial evidence is susceptible of two interpretations, one of which suggests

guilt and the other innocence [citations], it is the jury, not the appellate court which must

be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances

reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the

circumstances might also reasonably be reconciled with a contrary finding does not

warrant a reversal of the judgment.”’ [Citations.]” [Citation.]’ [Citations.] The

conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there


                                              11
sufficient substantial evidence to support [the conviction].”’ [Citation.]” (People v.

Cravens (2012) 53 Cal.4th 500, 507-508.)

       2. Analysis

       In charging defendant with grand theft, the prosecutor proceeded under two

theories: that defendant engaged in theft (1) as an agent or (2) by trick. Regardless of the

theory relied upon, defendant challenges the sufficiency of evidence of his intent to steal.

Intent “is seldom established with direct evidence but instead is usually inferred from all

the facts and circumstances surrounding the crime. [Citations.]” (People v. Lewis (2001)

25 Cal.4th 610, 643.) An intent to steal is inferred when a person takes another’s

property. (People v. Tufunga (1999) 21 Cal.4th 935, 943.) Here, the record discloses

such evidence.

       First, defendant acknowledges that Cinergy sent CDBA payments totaling

$2,895,170.08 from November 19, 2009, through March 10, 2010, and that IMAC,

through NBFSA, sent CDBA invoices covering that same period totaling $2,246,756.48.

Of the total amount invoiced on behalf of IMAC and U.S. Life, defendant admits that he

paid IMAC a total of $1,780.325.73 and withheld $466,431.20. He claims that he

intended to withhold that amount because he “became concerned that he was not making

the money from the large new influx of Cinergy business . . . [and] suspect[ed] that

IMAC, through NBFSA, might be overbilling him. Nonetheless, instead of contacting

IMAC, NBFSA, or U.S. Life to dispute or contest the invoices he received for the

insurance premiums, he simply took matters into his own hands and kept $466,431.20.


                                             12
While defendant claimed that he believed he was being overbilled and asked for an audit,

the only evidence supporting such claim was his testimony and a letter he wrote to IMAC

dated March 13, 2010. The jury rejected his self-serving claims. Defendant’s failure to

pay the full amount invoiced to him, coupled with his failure to dispute the amounts on

the invoices, demonstrates an intent to deprive IMAC and U.S. Life of the property that

rightfully belonged to them.

      Second, as an insurance agent, defendant had a fiduciary duty to remit the

insurance premiums he received from Cinergy to U.S. Life through IMAC. (Ins. Code.,

§ 1733.) According to the evidence, in order to offer U.S. Life’s insurance products,

defendant was required to be a licensed insurance agent. As an agent, defendant received

insurance premiums from Cinergy and remitted them to U.S. Life through IMAC.

Although defendant questions whether the funds Cinergy sent to him qualified as

insurance premium payments, the fact remains that he was a licensed insurance agent

who failed to remit the premiums payments to U.S. Life in January and February 2010,

thus breaching his fiduciary duty as an insurance agent.

      Third, the jury heard evidence that defendant’s business was in a decline when he

offered to provide Cinergy with insurance certificates under his group master policy with

U.S. Life. When U.S. Life terminated his appointment as an insurance agent for the

company and cancelled his group master insurance policy in December, defendant’s

business would have naturally experienced a more significant decline. In addition to

losing Cinergy’s business, defendant would be unable to provide the supplemental


                                            13
medical benefits to CDBA’s members. As the people assert, such loss provides a motive

to withhold insurance premiums in January and February 2010 from U.S. Life in an effort

to keep his company afloat.6

       We conclude the evidence presented to the jury reasonably justifies its verdict.

C. No Restitution Hearing Was Required

       Defendant contends the trial court abused its discretion in failing to hold a hearing

to determine the amount of restitution he owed to IMAC and U.S. Life. He asserts that

he should have been provided an opportunity to prove that he did not actually owe the

full amount that he withheld from them. We disagree.

       “‘[T]he Legislature intended victim restitution as a civil remedy rather than as a

criminal punishment.’ [Citation.]” (People v. Millard (2009) 175 Cal.App.4th 7, 35; see

also People v. Harvest (2000) 84 Cal.App.4th 641, 649.) The hearing is comparable to a

civil hearing because direct victim restitution serves to compensate crime victims for

their losses, rather than to punish defendants. (See § 1202.4, subd. (a)(3)(B) [“Restitution

to the victim or victims, if any, in accordance with subdivision (f), which shall be

enforceable as if the order were a civil judgment”]; see also People v. Millard, supra, at

p. 35 [describing restitution as a civil remedy rather than a criminal punishment which

does not constitute double jeopardy].) “The requirements of due process are satisfied by

providing the defendant a hearing on . . . the extent of the loss occasioned by the

defendant’s criminal conduct.” (People v. Baumann (1985) 176 Cal.App.3d 67, 79; see


       6   Defendant later filed for bankruptcy.

                                             14
§ 1202.4, subd. (f)(1) [“The defendant has the right to a hearing before a judge to dispute

the determination of the amount of restitution”].) “A restitution order is reviewed for

abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.]

No abuse of discretion will be found where there is a rational and factual basis for the

amount of restitution ordered.” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542

[Fourth Dist., Div. Two].)

       During the trial, the prosecution established a prima facie showing of the amount

of restitution ($466,431.20) that was set. (People v. Keichler (2005) 129 Cal.App.4th

1039, 1048 [victim’s submission of a claim makes a prima facie showing of the amount

of victim’s damages].) At sentencing, the court imposed restitution in the amount of

$466,431.20, payable to IMAC. When asked if defendant objected to any of his terms of

probation, he replied, “Why should I be paying IMAC anything?” Defendant’s counsel

agreed there was ample testimony about the figures used to calculate restitution, “so we

do not need anymore [sic] facts.” Nonetheless, he questioned whether the restitution

amount erroneously included a 27 percent markup. The prosecutor explained that the

industry practice was to allow for such markups, and even defendant had done the same

in his offerings to CDBA members. The court concluded: “I think factually we heard all

the testimony about the amounts. I don’t think there is any further restitution hearing

required. I do believe that the amount as indicated by the People was the amount testified

to in Court by various witnesses.”




                                             15
       Considered as a whole, the record indicates the trial court held a restitution

hearing, and that the hearing comported with due process. (People v. Giordano (2007)

42 Cal.4th 644, 663-664.) While defendant may not agree with the court’s calculation of

the amount of restitution, such disagreement does not mean that the court failed to

“analyze the evidence presented,” and to state how it calculated the amount of restitution.

(Ibid.) Given the evidence presented at trial, coupled with defense counsel’s concession

that no further facts were needed to calculate restitution, the trial court found that no

additional restitution hearing was necessary. In light of what was presented at trial and at

sentencing, we agree. We find no abuse of discretion in not granting a further hearing on

the amount of restitution. Moreover, given the evidence presented at trial, the trial

court’s restitution order does not amount to an abuse of discretion.

                                       III. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 HOLLENHORST
                                                                          Acting P. J.
We concur:

       MILLER
                                  J.

       CODRINGTON
                                  J.




                                              16
