Filed 4/4/17; part. pub. & mod. order 5/2/17 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIRST APPELLATE DISTRICT
                                               DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,
                                                                 A145038
v.
LEWIS ERVING LEE,                                                (San Mateo County
                                                                 Super. Ct. No. SC080320)
         Defendant and Appellant.



         A jury convicted Lewis Erving Lee of 77 felonies, including multiple counts of
grand theft (§ 487, subd. (a)), elder theft (§ 368, subd. (d)(1)), identity theft (§ 530.5,
subd. (a)), and money laundering (§ 186.10).1 The court sentenced Lee to 15 years in
state prison and ordered him to pay over $1.3 million in victim restitution (§ 1202.4).
         Lee appeals. He contends there was insufficient evidence to support the money
laundering convictions, the identity theft convictions, and two elder theft convictions.
Lee argues we should reverse all but one of the grand theft convictions against each
victim or set of victims. Also, Lee asserts we should modify the restitution order and
amend the judgment.
         We affirm in part and reverse in part. We reverse four of the money laundering
convictions based on insufficient evidence. We reverse the identity theft convictions
because there is no evidence Lee used his victims’ personal identifying information for


1
         Unless noted, all further statutory references are to the Penal Code.

                                                          1
an unlawful purpose without their consent. We reverse two elder theft convictions
because the Attorney General concedes there was insufficient evidence to support them.
We conclude Lee should not have to pay restitution to one set of victims, and the trial
court should amend the judgment to correct the amounts of certain fees. In all other
respects, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       We provide a brief overview of the facts here, and additional factual and
procedural details in the discussion of Lee’s specific claims. The People charged Lee
with 78 felonies: one count of first degree burglary (§ 460, subd. (a)), 22 counts of grand
theft (§ 487, subd. (a)), six counts of elder theft (§ 368, subd. (d)(1)), 20 counts of
identity theft (§ 530.5, subd. (a)), 11 counts of money laundering (§ 186.10), 17 counts of
fraudulent sale of a security (Corp. Code, § 25401), and one count of securities fraud
(Corp. Code, § 25541).
       Lee, who has a degree in business administration, began a tax consulting business
in 1974. Starting in the 1990’s, Lee convinced many of his tax clients to invest
significant amounts of money with him, telling them their funds would either be part of
an “investment club” or used to purchase shares in a company called China EC Net.
Instead, Lee used the money for personal needs, including payment of mortgage
obligations, living expenses, and his daughter’s medical costs. When a San Mateo police
officer arrested Lee in 2012, Lee said “you have no idea how big this is” and admitted “I
know I was wrong for what I’ve done.”
       A.     China EC Net
       Lee became involved with China EC Net through one of his tax clients, who was
the company’s corporate secretary from 1998 to 2001 and its chief executive officer
around 2001. China EC Net listed Lee as its chief financial officer in 2000, but a
company founder testified he did not believe Lee spent a lot of time working for the
company. Lee’s financial problems derived from “bet[ting] the farm” on China EC Net
going public, which never occurred.


                                               2
       In February 2000, China EC Net granted Lee options to purchase 10,000 shares of
common stock. In August 2006, Lee exercised the options and purchased the shares for
$650. Those were the only shares Lee ever purchased. In April 2008, Lee received
another 50,000 shares as a gift. China EC Net issued Lee stock certificates documenting
his ownership of 60,000 shares.
       Lee testified that, in February 2000, the company awarded him an additional
500,000 options, and that he exercised them, but there is no stock certificate showing
Lee’s purported ownership of these shares. A company founder testified the grant could
not have occurred without his knowledge. Lee stated he was granted and exercised
another 250,000 options in 2007, but Lee received no documentation regarding this
purported exercise of options.
       China EC Net’s stock options were not transferable, except by will or the law of
descent, and only the option holder could exercise them. Anyone who wanted to transfer
shares had to give notice to the company, which had the right of first refusal to purchase
the shares. Lee understood China EC Net had a right of first refusal. Lee devised a plan
to hold the shares in trust for his clients to avoid this problem. Lee never gave the
company notice of his intent to sell his shares.
       Lee claimed he owned 810,000 shares, and his records indicate he “sold” 733,000
option shares. China EC Net does not recognize as shareholders any of the persons to
whom Lee purportedly sold shares.
       B.     The Investment Clubs
       In addition to selling shares in China EC Net, Lee admitted taking money from
many of his tax clients, but not investing it as promised. Lee started an investment club
in May 1991. The concept was that club members would invest funds that Lee would
pool and use to buy stocks. Lee set up a portfolio based on the money provided and
created reports for his clients showing their returns, but he used the money for personal
needs. Lee convinced tax clients to join three different investment clubs. If clients
wished to withdraw funds, Lee often used money obtained from other investors to cover
the withdrawals.
                                              3
         C.    Verdict and Sentence
         The prosecution dismissed one count of elder theft, and a jury convicted Lee of 77
counts consisting of the following: one count of burglary (§ 460, subd. (a)), 22 counts of
grand theft (§ 487, subd. (a)), five counts of elder theft (§ 368, subd. (d)(1)), 20 counts of
identity theft (§ 530.5, subd. (a)), 17 counts of fraudulent sale of a security (Corp. Code,
§ 25401), 11 counts of money laundering (§ 186.10), and one count of securities fraud
(Corp. Code, § 25541). The court sentenced Lee to 15 years in state prison, and ordered
him to pay $1,345,274.67 in restitution.
                                       DISCUSSION
                                              I.
    There Was Sufficient Evidence to Support Seven of the Money Laundering Convictions,
                      but Insufficient Evidence to Support Four of Them
         Lee contends insufficient evidence supports his money laundering convictions.
Section 186.10, subdivision (a) prohibits conducting transactions through financial
institutions “involving a monetary instrument or instruments” exceeding $5,000 within a
seven-day period, or $25,000 within a 30-day period, “(1) with the specific intent to
promote, manage, establish, carry on, or facilitate the promotion, management,
establishment, or carrying on of any criminal activity, or (2) knowing that the monetary
instrument represents the proceeds of, or is derived directly or indirectly from the
proceeds of, criminal activity . . . .” Thus, the statute criminalizes two different types of
activity: promoting criminal activity, and engaging in transactions with the proceeds of
criminal activity. The Attorney General labels the statute’s two prongs the “promoting
prong” and the “transactional prong.”2
         “Monetary instrument” means “United States currency and coin” and it includes
“any personal check . . . in bearer form or otherwise in a form in which title thereto
passes upon delivery.” (§ 186.9, subd. (d).) “Monetary instrument” does not include
2
        The jury instruction on money laundering stated the prosecution had to prove
“[t]he defendant knew that the monetary instruments represented the proceeds of criminal
activity.” In other words, the prosecution focused on what the Attorney General calls the
“transactional prong” of the statute.

                                              4
“personal checks made payable to the order of a named party which have not been
endorsed or which bear restrictive endorsements, and also does not include personal
checks which have been endorsed by the named party and deposited by the named party
into the named party’s account with a financial institution.” (Ibid.)
       A.     Whether Lee’s Use of Personal Checks Were Transactions Involving
              Monetary Instruments
       On appeal, Lee contends there was insufficient evidence he conducted transactions
involving monetary instruments.3 Lee’s victims wrote personal checks to him, which he
deposited into his bank account. But a personal check deposited by a payee into the
payee’s account is not a “ ‘monetary instrument’ within the meaning of section 186.9,
subdivision (d).” (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1100
(DeVaughn).) Applying this exclusion, Lee argues his deposits in counts 67 to 77
inclusive were not transactions involving “monetary instruments.” Therefore Lee
contends there was insufficient evidence to support his money laundering convictions.
       Preliminarily, we are not persuaded by Lee’s focus on his deposits. A
“transaction” includes withdrawing money from a bank account. (§ 186.9, subd. (c)
[transaction includes “the deposit, withdrawal, . . . or exchange of currency, or a
monetary instrument . . .”]; People v. Mays (2007) 148 Cal.App.4th 13, 22 (Mays) [“A
transaction includes a deposit into or withdrawal from a financial institution”].) Lee’s
acts of withdrawing money could be “transactions” within the meaning of the money
laundering statute. In its closing arguments, the prosecution told the jury “to look at
where the investor money is going when it leaves Mr. Lee’s account.”
       We consider, then, whether Lee’s acts of withdrawing money by writing personal
checks against funds Lee obtained from his victims were transactions involving
“monetary instruments” in violation of section 186.10, subdivision (a). The Attorney
General acknowledges Lee may have withdrawn some money by writing personal checks
3
      During deliberations, the jury sought clarification regarding the definition of
“monetary instrument,” noting it excluded certain kinds of personal checks. The court
responded: “The definition is what it is.” The jury convicted Lee of all the money
laundering charges.

                                             5
because prosecution exhibits 24 and 27 — spreadsheets showing Lee’s deposits and
withdrawals — list check numbers next to some of the withdrawals.4 The Attorney
General then states “[i]t is unclear if these check numbers relate to personal checks
written by the payor and deposited by the payee into the payee’s account; the issue was
not developed below by either party.” Nevertheless, the Attorney General argues “the
fundamental monetary instrument . . . remains the stolen money in [Lee’s] bank account.”
Relying on People v. Conners (2008) 168 Cal.App.4th 443 (Conners), the Attorney
General argues that “transactions involving stolen money constitute money laundering,
even if a personal check was used as a subsequent or secondary instrument to transfer
that currency out of an account.”
       We disagree with the Attorney General’s premise that Lee’s acts of withdrawing
money by writing personal checks were transactions criminalized by section 186.10,
subdivision (a) simply because Lee wrote the personal checks against funds he stole from
his victims. We are not at liberty to focus only on the source of the funds where Lee’s
withdrawals are the relevant transactions, where many of the withdrawals were by check,
and where the statute does not criminalize all transactions involving personal checks.
While the definition of “monetary instrument” includes personal checks in bearer form, it
excludes other kinds of personal checks. (§ 186.9, subd. (d).)
       For this reason, the Attorney General’s reliance on Conners is misplaced. The
defendant in Conners used checks to obtain cash. (Conners, supra, 168 Cal.App.4th at
p. 450.) For one check, someone lined out the defendant’s name and replaced it with
“Cash.” (Ibid.) There was no issue regarding whether the checks were “monetary
instruments” because “cash was paid out to the endorser.” (Ibid.) But most of the checks


4
        The Attorney General moved to augment the record to include numerous
prosecution exhibits, including exhibits 24 and 27. Lee opposed the motion claiming the
trial court did not admit the exhibits into evidence. Lee is incorrect; the exhibits were
admitted. We partially grant the motion to augment and augment the record to include
prosecution exhibits 24, 27, 82, 90, 98, 136-140, 146, 147, 188, 191, 268, 280 and 281.
On our own motion, we augment the record to include prosecution exhibits 108, 110, 219
and 220. (Cal. Rules of Court, rules 8.155(a), 8.340(c).)
                                             6
Lee wrote — as shown by exhibits 24 and 27 — were not in bearer form; instead, they
typically list the names of specific payees. There is no evidence as to whether the payees
endorsed them and deposited them into their bank accounts. In short, the prosecution did
not prove these checks were monetary instruments as defined in section 186.9.
       In DeVaughn, the court reversed money laundering convictions because the
transactions involved personal checks. (DeVaughn, supra, 227 Cal.App.4th at pp. 1100-
1101.) One conviction was based on a transaction involving a personal check made
payable to a defendant’s company, and the defendant deposited the check into the
company’s account. (Id. at pp. 1098, 1100.) Three other convictions involved personal
checks payable to, and endorsed by, third party payees. (Id. at pp. 1100-1101.) The court
concluded these transactions did not involve a “monetary instrument” within the meaning
of section 186.9, subdivision (d). (Ibid.)
       The Attorney General argues Lee’s reliance on DeVaughn is misplaced because
the DeVaughn defendants were convicted of promoting criminal activity by depositing
personal checks, whereas here the issue is whether Lee violated the second “transactional
prong” of the statute by spending large sums of stolen money. But the definition of
“monetary instrument” applies to both the transactional and the promotional prong of the
money laundering statute. Under both prongs, the prosecution must prove the defendant
conducted transactions involving “a monetary instrument or instruments.” (§ 186.10,
subd. (a).) For the checks Lee wrote, if the payees endorsed and deposited them into
their bank accounts, then they were not transactions involving monetary instruments.
       According to the Attorney General, it would “contravene the intent of the
Legislature and the purpose of the money laundering statute if [Lee’s] conduct did not
constitute money laundering simply because a personal check might have been involved
as a secondary monetary instrument, used to convey stolen United States currency out of
appellant’s account.” The Attorney General contends it would “lead to absurd,
inconsistent results if [Lee] committed money laundering when he transferred the stolen
money directly out of his account using a wire or electronic transfer, but not when he
transferred the stolen currency out of his account using a personal check.”

                                             7
       Neither the Attorney General nor Lee discuss the statute’s legislative history.
After conducting our own review, we conclude the Legislature intended the result the
Attorney General characterizes as “absurd” or “inconsistent.” In 1992, the Legislature
amended the money laundering statute to expand its scope. (Assem. Bill No. 3716
(1991-1992 Reg. Sess.) Ch. 672, § 1, at pp. 2874-2876; Legis. Counsel’s Dig., Assem.
Bill No. 3716 (1991-1992 Reg. Sess.), 1992 Summary Dig., p. 252.) According to the
bill’s author, the amendments would “plug loopholes in existing law which permit money
laundering by way of electronic and wire transfers and by the use of a personal check
made out to ‘cash.’ ” (Sen. Com. on Judiciary, Assem. Bill No. 3716 (1991-1992 Reg.
Sess.) as amended May 16, 1992, p. 3.)
       Before the amendment, “transaction” did not include electronic or wire transfers.
(1992 Deering’s Adv. Legis. Service 672, p. 2.) “Monetary instrument” did not include
personal checks, although it did include “bank checks, cashier’s checks, traveler’s
checks, and money orders in ‘bearer form’ or otherwise in such form that title passes
upon delivery (e.g., a check or money order made payable to ‘cash’).” (Sen. Com. on
Judiciary, Assem. Bill No. 3716 (1991-1992 Reg. Sess.) as amended May 16, 1992, p. 2.)
The 1992 bill amended the definition of “transaction” to include electronic and wire
transfers, and it sought to “[r]edefine the term ‘monetary instrument’ to also include bank
transfers or personal checks which are in bearer form or otherwise in such form that title
passes upon delivery. Bank checks, traveler’s checks or personal checks made payable to
a named party which have not been endorsed or which bear restrictive endorsements are
not included in the definition.” (Id. at pp. 2-3.) The amendments did not include
“[p]ersonal checks made payable to the order of a named party, as specified.” (Assem.
Com. on Public Safety, Assem. Bill No. 3716, (1991-1992 Reg. Sess.), p. 2.) The
amendments expanded the statute to include electronic or wire transfers, and to include
personal checks made payable to “cash,” but the Legislature specifically excluded other
kinds of personal checks from the statute’s scope.
       We cannot agree with the Attorney General that we can focus on the stolen money
as the “primary” monetary instrument. If the prosecution’s theory was that cash deposits

                                             8
were the relevant transactions, then Lee’s subsequent use of checks to withdraw funds
would not be relevant to our analysis. For example, in Mays, the prosecution based the
money laundering charges on the defendant’s cash deposits into his bank account, so it
was not relevant to the court’s analysis that the defendant subsequently wrote checks
from this account to pay rent and phone bills. (Mays, supra, 148 Cal.App.4th at pp. 20-
21.) But here, the prosecution did not, and could not, rely on Lee’s deposits because they
were personal checks that Lee endorsed and deposited into his account. Instead, the
prosecution focused on Lee’s withdrawals as the pertinent transactions. Hence, we
cannot ignore that many of these withdrawals were by check.
       B.     Sufficient Evidence Supports Seven of the Money Laundering Convictions
       For the withdrawals by check, as shown in exhibits 24 and 27, there was no
testimony about what the payees did with the checks. Lee contends the jury could only
speculate these transactions involved monetary instruments. A conviction cannot be
based on speculation. (People v. Raley (1992) 2 Cal.4th 870, 891.) We agree with Lee it
would be speculative to base convictions on withdrawals using personal checks that Lee
made payable to specific persons or entities.
       However, as a reviewing court, we are required to “review the evidence in the
light most favorable to the prosecution and presume in support of the judgment the
existence of every fact the [trier of fact] could reasonably have deduced from the
evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “An appellate court must
accept logical inferences that the jury might have drawn from the evidence . . . .” (People
v. Combs (2004) 34 Cal.4th 821, 849.) If we exclude from exhibits 24 and 27 all
withdrawals where a check number is listed, there remain sufficient withdrawals that
exceeded $5,000 in a seven-day period or $25,000 in a 30-day period to support the
charges in counts 67, 70, 71, 73, 74, 75, and 77. We briefly summarize the evidence
supporting these convictions:




                                                9
     Count 67 concerned Lee’s use of funds after he deposited a $100,000 check from
       Cornelius G. on December 17, 2007.5 On the same day, Lee made two non-check
       mortgage payments of $18,945.29 and $20,939.82. Three days earlier, Lee had
       deposited a $50,000 check from other investors, but his account balance was only
       $1,606.16 before this earlier deposit. As a result, the jury could reasonable infer
       Lee knew he made the two non-check mortgage payments using the proceeds of
       criminal activity, and the amounts exceeded $5,000 in a seven-day period.
     Count 70 concerned Lee’s use of funds provided by Kathleen G. On the same day
       Lee deposited her $12,000 check, Lee made a non-check mortgage payment of
       $5,845.88. Before the deposit, Lee had only $535.84 in his bank account.
     Count 71 concerned Lee’s use of funds provided by Lisa K.6 Before Lee
       deposited her $50,000 check, his account balance was only $594.24. Four days
       later, Lee made three non-check mortgage payments totaling $16,466.96.
     Count 73 concerned withdrawals after Lee deposited two checks from Robert W.
       totaling $20,000. Lee had $14,254.54 in his account before the deposits, but most
       of this balance came from the $15,000 another investor gave Lee five days earlier.
       On the same day Lee deposited Robert W.’s two checks, Lee made two non-check
       mortgage payments totaling $12,665.47.
     Count 74 concerned Lee’s use of funds provided by Patricia G. Before Lee
       deposited her $12,000 check, Lee’s balance was $1,279.82. Over the next seven
       days, Lee paid some bank fees, and his non-check withdrawals totaled $9,969.48,
       including a mortgage payment of $6,350.47.


5
       We refer to Lee’s victims by first name and last initial to protect their privacy
interests. (Cal. Rules of Court, rule 8.90(b)(4).)
6
       On appeal, when discussing count 71, both Lee and the Attorney General focus on
Lee’s use of money given by other investors around the same time, Wilbur and
Jacqueline T. However, in the prosecution’s closing arguments, the People relied on
funds provided by Lisa K., not Wilbur and Jacqueline T., when explaining count 71 to the
jury.

                                             10
    Count 75 concerned Lee’s use of Joan H.’s investment of $30,000. Before Lee
      deposited her check, his account balance was only $736.48. Two days later, Lee
      made a non-check mortgage payment of $6,358.47.
    Count 77 concerned withdrawals after Lee deposited a $15,000 check from Sharon
      H. in January 2012. Before the deposit, Lee’s balance was only $132.45. On the
      same day, Lee made two non-check mortgage payments totaling $11,627.94.

      In his reply brief, Lee does not address this evidence, but argues more generally
that where it was not clear “whether or not certain payments were made by check or how
any checks were processed,” then the prosecution did not prove Lee used “monetary
instruments” as defined in section 186.9, subdivision (d). Accordingly, he reasons we
should reverse all the money laundering convictions. But Lee’s non-check withdrawals
clearly constitute transactions involving monetary instruments and Lee does not suggest
otherwise. There was sufficient evidence Lee knew his non-check withdrawals
represented the proceeds of criminal activity. (§ 186.10, subd. (a).) Evidence of Lee’s
non-check withdrawals, as outlined above, provides sufficient evidence to support seven
money laundering convictions.
      C. There Was Insufficient Evidence To Support Four Money Laundering
         Convictions
      According to the Attorney General, if we exclude “all transactions where check
numbers are also listed, counts 67, 70, 71, 73, 74, 75, and 77 would not be impacted.” In
other words, the evidence of non-check withdrawals was still sufficient to support the
convictions under those counts. But this statement implies counts 68, 69, 72, and 76 are
“impacted” and that the prosecution did not prove money laundering under these four
counts. As explained above, we must exclude the withdrawals where Lee wrote checks
to payees because the jury could not reasonably infer those transactions involved a
“monetary instrument.”
      Having reviewed the non-check withdrawals used to support counts 68, 69, 72,
and 76, the evidence was not sufficient to show Lee engaged in transactions involving
monetary instruments that exceeded $5,000 in seven days, or $25,000 in 30 days,

                                           11
knowing the monetary instruments represented the proceeds of criminal activity.7
(§ 186.10, subd. (a).) We reverse the money laundering convictions as charged in counts
68, 69, 72, and 76.
                                              II.
              The Evidence Does Not Support Lee’s Identity Theft Convictions
       The jury found Lee guilty of 20 counts of identity theft. The identity theft statute
provides: “Every person who willfully obtains personal identifying information . . . of
another person, and uses that information for any unlawful purpose, including to obtain,
or attempt to obtain, credit, goods, services, real property, or medical information without
the consent of that person, is guilty of a public offense . . .” (§ 530.5, subd. (a).)
Personal identifying information includes “any name, address, telephone number, . . .
demand deposit account number, savings account number, checking account number, . . .
unique electronic data including information identification number assigned to the
person, address or routing code, . . . or an equivalent form of identification.” (§ 530.55,
subd. (b).)
       “The elements of the crime . . . may be summarized as follows: (1) that the person
willfully obtain personal identifying information belonging to someone else; (2) that the
person use that information for any unlawful purpose; and (3) that the person who uses
the personal identifying information do so without the consent of the person whose
personal identifying information is being used.” (People v. Barba (2012) 211
Cal.App.4th 214, 223 (Barba).) Lee challenges the sufficiency of the evidence for all
three elements of the crime. We are not persuaded by Lee’s first argument, but Lee is
correct when he argues there was insufficient evidence to satisfy the second and third
elements. Accordingly, we reverse the identity theft convictions.




7
       The court reviewed the deposits and withdrawals as listed in prosecution exhibits
24 and 27. The relevant sections are pages 7-8, 29-31, and 104-105 of prosecution
exhibit 24, and pages 2-3 of prosecution exhibit 27.

                                              12
       A.     There Was Sufficient Evidence Lee Willfully Obtained His Victims’
              Personal Identifying Information
       First, Lee contends he did not willfully obtain his victims’ personal identifying
information because his intent was to obtain their money, not their information. Lee’s
victims wrote him checks or wired funds to him. Lee contends obtaining their
information was merely a “byproduct” of how he obtained their money.
       We disagree with this argument. Use of the word “willfully” in subdivision (a) of
section 530.5 “implies simply a purpose or willingness to commit the act.” (In re
Rolando S. (2011) 197 Cal.App.4th 936, 941; People v. Lewis (2004) 120 Cal.App.4th
837, 852 (Lewis); § 7, subd. (1).) It implies “no evil intent but means the person knows
what he or she is doing, intends to do it and is a free agent.” (Lewis, supra, 120
Cal.App.4th at p. 852.) Lee convinced his victims to write him checks or wire money to
him, which resulted in Lee willfully obtaining their personal identifying information,
including checking account numbers. This evidence was sufficient to satisfy the first
element of the crime. (In re Rolando S., supra, 197 Cal.App.4th at pp. 941-942
[defendant willfully obtained victim’s password even though he was recipient of
unsolicited text message containing the password].)
       B.     There Was No Evidence Lee Used His Victims’ Information for Any
              Unlawful Purpose
       Lee next challenges the sufficiency of the evidence of the second element, arguing
that when his victims wrote him checks or wired money to him, he simply deposited the
checks or accepted the wire transfers. We agree with Lee that this conduct does not
constitute use of the information for an unlawful purpose.
       The Attorney General argues Lee “used the personal information contained in the
personal checks and wires to obtain money that allowed him to perpetuate his financial
crimes for decades. The personal information was necessary in order for [Lee] to obtain
the amount of money he needed in order to carry out financial crimes of this scope. As
such, it was used for an unlawful purpose within the broad meaning of Penal Code
section 530.5.” This argument stretches the concept of use for an unlawful purpose too
far. It is not illegal to deposit checks or accept wire transfers. What made Lee’s conduct
                                             13
unlawful was his failure to use his victims’ money as promised. This case is not like In
re Rolando S., where the defendant used his victim’s information to access her Facebook
account and post prurient messages. (In re Rolando S., supra, 197 Cal.App.4th at
p. 939.) Where Lee simply deposited his victims’ checks or accepted wire transfers,
there is no evidence of an unlawful use of his victims’ information.8
       C.     There Was No Evidence Lee Used the Information Without Consent
       Next, Lee argues each person who gave him a check containing personal
information “expressly consented to his negotiating it and having the funds transferred
into his account.” We agree. “What the statute contemplates and proscribes is using
someone else’s personal identifying information, without consent and for purposes that
include obtaining credit or goods.” (Hagedorn, supra, 127 Cal.App.4th at p. 747.) There
is no evidence Lee used information without consent.
       Cashing checks may sometimes constitute use of another’s information without
consent. For example, if a defendant steals checks, fills them out, and attempts to cash
them, then the defendant has used another’s information without consent. (Barba, supra,
211 Cal.App.4th at p. 229.) Similarly, if a defendant attempts to cash a check made
payable to another using the other’s identification obtained without permission, the
defendant has violated the statute. (Hagedorn, supra, 127 Cal.App.4th at p. 739.) But
Lee’s victims sent him checks or wired money to him intending that he would get the
money. Where Lee did not use the money as promised, then he stole from his victims,
but this conduct did not constitute using their information without consent.



8
        Courts have interpreted section 530.5, subdivision (a), broadly. For example, it
contains no requirement that the defendant hold himself out as someone else. (Barba,
supra, 211 Cal.App.4th at p. 223-224.) It does not require an intent to defraud or to cause
harm or loss to another. (People v. Hagedorn (2005) 127 Cal.App.4th 734, 741-742, 744
(Hagedorn).) Courts have interpreted “any unlawful purpose” to include conduct broader
than crimes; for example, using a person’s password to commit libel falls within the
statute’s purview. (In re Rolando S., supra, 197 Cal.App.4th at pp. 943-947.) But the
statute still requires use of the information for an unlawful purpose and there is no such
evidence here.
                                            14
       The Attorney General argues the victims’ consent was not “legally valid consent.”
This approach conflates the second and third elements of the crime. The issue is not
whether Lee’s victims consented to an “unlawful use” of their information.9 Instead, the
issue is simply whether Lee’s use was without the consent of the person whose
information he used. (CALCRIM No. 2040 [“To prove that the defendant is guilty of this
crime, the People must prove that: [¶] 1. The defendant willfully obtained someone else’s
personal identifying information; [¶] 2. The defendant willfully used that information for
an unlawful purpose; [¶] AND [¶] 3. The defendant used the information without the
consent of the person whose identifying information (he/she) was using”].) Where Lee’s
victims intended that he deposit their checks or accept their wire transfers, he did not use
their information without their consent. We reverse the 20 identity theft convictions.
                                            III.
               Sufficient Evidence Supports Lee’s Grand Theft Convictions
       A number of Lee’s grand theft convictions concerned the same victim or set of
victims. The jury convicted Lee of two counts of grand theft for unlawful takings from
Patricia B. and Peter T. (counts 26 and 27), Lucky and Marina R. (counts 40 and 41), and
Robert G. (counts 46 and 48). The jury convicted Lee of three counts of grand theft for
taking money from Sharon H. (counts 31, 33, and 36). Relying on the California
Supreme Court’s decision in People v. Bailey (1961) 55 Cal.2d 514 (Bailey), Lee
contends he should have been convicted of only one count of grand theft for each of these
sets of victims.
       In Bailey, the defendant obtained multiple welfare payments by false pretenses,
each of which would have constituted petty theft, but, by aggregating the amounts, she
9
        The Attorney General relies on a case where, in the context of discussing theft by
larceny, the Supreme Court noted a department store impliedly consents to customers
picking up clothing within the store, but not if the customer intends to steal the item of
clothing. (People v. Davis (1998) 19 Cal.4th 301, 306.) But this example does not
support the conclusion that the words “without the consent of that person” in subdivision
(a) of section 530.5 means without the “legally valid consent” of the person. We will not
read into the statute words it does not contain. (Vasquez v. State of California (2008) 45
Cal.4th 243, 253.)

                                             15
was convicted of one count of grand theft, and the Supreme Court upheld the conviction.
(Id. at pp. 515-516, 518-519.) The Supreme Court stated “a defendant 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.” (Id. at p. 519.)
       In People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer), the California Supreme
Court revisited the Bailey rule in a case concerning the manager of a motorcycle
dealership who fraudulently sold 20 different vehicles, costing the dealership more than
$250,000. (Id. at p. 735.) The jury convicted him of 20 counts of grand theft, one for
each vehicle, and he appealed, claiming he should have been convicted of only one count
of grand theft under the Bailey doctrine. (Id. at pp. 735-736.) The Whitmer Court
disapproved of Court of Appeal cases that have applied the Bailey rule too broadly to bar
multiple convictions for grand theft when the individual thefts arise from one plan or
scheme, even though each theft is separate and distinct. (Id. at p. 740.) The Whitmer
Court concluded “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.” (Id. at p. 741.) However, given the long line of Court of Appeal cases
“consistently [holding] that multiple acts of grand theft pursuant to a single scheme
cannot support more than one count of grand theft,” the court concluded that its holding
was “an unforeseeable judicial enlargement of criminal liability for multiple grand
thefts.” (Id. at p. 742.) As a result, the Bailey rule as clarified by Whitmer could not
constitutionally apply retroactively to the defendant in Whitmer. (Ibid.)
       Lee contends that, given the dates of his offenses, we must base our decision on
the law prior to Whitmer. We agree. The conduct underlying these convictions occurred
between 2005 and 2012. We apply the Bailey rule as it existed before Whitmer because
Lee’s conduct predates the Supreme Court’s decision. (People v. Nilsson (2015) 242
Cal.App.4th 1, 19 [applying Bailey as it existed at the time of the crimes].)
       Even so, we conclude the Bailey rule does not require reversal of the grand theft
convictions. Patricia B. and Peter T. wrote Lee separate checks for $6,000 and $35,000

                                             16
to buy shares of China EC Net. The jury could have construed the offenses as charged in
counts 26 and 27 as involving different victims. The Bailey doctrine applies when there
are multiple takings from the same victim. (Bailey, supra, 55 Cal.2d at p. 519.) It does
not bar Lee’s convictions involving different victims as charged in counts 26 and 27.
       With regard to Lee’s thefts from Lucky and Marina R., Lee told them their June
2006 payment was for shares of China EC Net, but he told them their August 2007
payment was to join one of his investment clubs. Based on Lee’s different
representations, it was reasonable for the jury to conclude the offenses charged in counts
40 and 41 were separate and distinct intentional acts, and that Lee did not commit them
pursuant to one intention, impulse, plan or scheme. (People v. Jaska (2011) 194
Cal.App.4th 971, 984 (Jaska) [courts apply Bailey rule “in the absence of any evidence
from which the jury could have reasonably inferred that the defendant acted pursuant to
more than one intention, one general impulse, or one plan”].)10
       Robert G. made two payments to Lee in 2007 and 2010 for shares of China EC
Net. Lee’s offenses against Robert G. occurred years apart, and Lee’s explanation of
what he would do with Robert G.’s money changed each time. Before Robert G.’s first
decision to invest, Lee said he would use the money to exercise his own stock options.
But Robert G.’s second investment was based on Lee’s purported need to buy additional
shares from others to tip the voting balance and convince China EC Net to go public.
This evidence was sufficient for the jury to infer Lee “stole various sums of money in an
opportunistic manner, essentially whenever the need and/or occasion arose.” (Jaska,
supra, 194 Cal.App.4th at p. 985.)
       The same analysis applies to Lee’s thefts from Sharon H., who had money to
invest after she sold a house in 2005. Lee suggested his investment club, and Sharon H.

10
       Lee suggests the Whitmer Court regarded Jaska as “an outlier in its application of
the Bailey rule.” But in Whitmer, the Supreme Court cited Jaska for its discussion of
other Court of Appeal cases that interpreted Bailey too broadly. (Whitmer, supra, 59
Cal.4th at p. 739.) In Jaska, the court concluded the defendant was properly convicted of
multiple counts of grand theft. (Jaska, supra, 194 Cal.App.4th at p. 985.) This holding is
consistent with the Whitmer Court’s analysis.

                                            17
invested $75,000. Thereafter, Lee sent Sharon H. reports suggesting her investments
were doing well. Based on these reports, Sharon H. contributed $15,000 in 2009 for a
second investment club, and she sent Lee another $15,000 in 2011 for a third investment
club. Each payment occurred years apart, Lee represented each payment was for a
different investment club, and Sharon H.’s later investments were based on Lee’s positive
reports about the earlier investment. This evidence was sufficient for the jury to conclude
each offense was a separate and distinct act, and not part of the same plan or scheme. We
affirm the grand theft convictions.11
                                           IV.
         The Evidence Was Insufficient to Support Two Elder Theft Convictions
       The jury convicted Lee of elder theft related to money he took from Sharon H., as
charged in counts 34 and 37. An “elder” means any person who is 65 years of age or
older. (§ 368, subd. (g).) The Attorney General concedes there was no evidence Sharon
H. was 65 or older when the transactions occurred in January 2009 and December 2011.
We accept the concession and reverse the convictions for elder theft as charged in counts
34 and 37.
                                            V.
                         The Restitution Order Must Be Modified


11
        In his reply brief, Lee argues for the first time that because the jury found
enhancement allegations true under section 186.11, subdivision (a)(2), then the jury must
have found Lee’s grand thefts arose from a common scheme or plan. Ordinarily, we do
not consider arguments made for the first time in a reply brief. (In re Groundwater Cases
(2007) 154 Cal.App.4th 659, 693.) Even considering the argument, Lee fails to show the
jury found the grand thefts arose from one scheme or plan. Subdivision (a)(2) of section
186.11 provides for an enhanced sentence if the “pattern of related felony conduct”
involves the taking of more than $500,000. But conduct can be related or similar without
being part of the same scheme or plan. The statute states “ ‘pattern of related felony
conduct’ means engaging in at least two felonies that have the same or similar purpose,
result, principals, victims, or methods of commission, or are otherwise interrelated by
distinguishing characteristics, and that are not isolated events.” (§ 186.11, subd. (a)(1),
italics added.)


                                            18
       Lee contends the restitution order improperly requires him to pay restitution to
persons who were not victims of offenses for which he was convicted.
       A.     Procedural Background
       After the jury convicted Lee, the prosecution requested $1,345,274.67 in
restitution. The restitution memo noted the prosecution spoke to Mackie G. in June 2015
and, as a result of the conversation, the prosecution sought only $15,000 in restitution for
Mackie and Greg G., not its initial request of $50,000. In June 2015, the prosecution
heard from Patricia M., who said she and her husband gave Lee $32,000 for shares in
China EC Net in 2004 or 2005. The memo attached paperwork supporting Patricia M.’s
claim. The prosecution also sought restitution for persons named Lee W., Lisa K., and
Gary P.
       At the restitution hearing, Lee submitted on the People’s memo for restitution.
The restitution order included proportionate disbursements to the victims from a $26,000
trust account, and, after those disbursements, the total restitution ordered was
$1,319,274.67. The restitution order included payments to Mackie and Greg G., Patricia
M., Lee W., Lisa K., and Gary P.
       B.     Lee Should Not Have to Pay Restitution to Mackie and Greg G.
       “It is the intent of the Legislature that a victim of crime who incurs an economic
loss as a result of the commission of a crime shall receive restitution directly from a
defendant convicted of that crime. ” (§ 1202.4, subd. (a)(1), italics added.) There is no
requirement that victims receiving restitution be named in the charging document.
(People v. Walker (2014) 231 Cal.App.4th 1270, 1275-1276.) However, “section 1202.4
limits the scope of victim restitution to losses caused by the criminal conduct for which
the defendant sustained the conviction.” (People v. Woods (2008) 161 Cal.App.4th 1045,
1050; People v. Lai (2006) 138 Cal.App.4th 1227, 1249.)
       The Attorney General argues Lee forfeited the argument he should not have to pay
restitution to certain persons because he did not object below. We are not persuaded that
the argument is forfeited. Lee’s argument is that these restitution payments were
statutorily unauthorized. “ ‘[T]he “unauthorized sentence” concept constitutes a narrow

                                             19
exception to the general requirement that only those claims properly raised and preserved
by the parties are reviewable on appeal.’ ” (People v. Anderson (2010) 50 Cal.4th 19, 26
[claim that victim restitution order was unauthorized not forfeited by failure to object
below].)
       Considering Lee’s argument, we disagree with his challenges to most of the
restitution payments. In count 78, the jury convicted Lee of violating Corporations Code
section 25541, for conduct occurring between 1998 and 2012. The statute makes it a
crime to employ willfully any device, scheme, or artifice to defraud in connection with
the offer, purchase, or sale of a security. (Corp. Code, § 25541.) At trial, the prosecution
presented evidence that Lee defrauded Lee W., Lisa K., and Gary P. because they gave
Lee money for shares of China EC Net between 2004 and 2006. In the restitution memo,
the prosecution presented similar evidence regarding Patricia M., who gave Lee money in
2004. Therefore Lee’s misconduct towards these persons was encompassed within his
conviction for securities fraud. Their losses were caused by criminal conduct for which
Lee sustained a conviction.
       However, Mackie and Greg G. did not invest money to purchase China EC Net
shares; instead, they invested $50,000 in one of Lee’s investment clubs in 1999. The
Attorney General argues they “were not named victims in any of the grand theft . . .
charges related to [Lee’s] investment clubs, but the financial harm they suffered arose out
of the same underlying criminal conduct.”
       We are not persuaded. First, Lee said he paid back Mackie and Greg G. when he
refinanced one of his homes. The restitution memo states: “The People spoke with
[Mackie G.] on June 15, 2015. She indicated that her recollection was that Defendant
gave her more than the $50,000, however, she indicated that both her brother and father
were victims of Mr. Lee’s schemes as well, and she split the money with them. Her best
recollection was that she retained about $35,000, but she was going to see if she could
find documentation. The People have tried to call her again without success and have not
heard an update.”


                                             20
       Putting to one side the question of whether this statement in the restitution memo
constitutes a sufficient factual basis for the restitution award to Mackie and Greg G., we
cannot conclude their economic losses, if any, arose out of the conduct underlying Lee’s
grand theft convictions. Unlike the securities fraud conviction in count 78, Lee’s grand
theft convictions were victim-specific. For example, Lee’s three grand theft convictions
related to Sharon H. (counts 31, 33 and 36) were based on Lee’s unlawful takings from
her in 2005, 2009, and 2011-2012. As Lee puts it, “the conduct underlying . . . [Lee’s]
convictions was a series of individual acts and misrepresentations, directed at specific
persons, by which he obtained funds from them, and he was charged individually for each
act.” The victim-specific conduct underlying Lee’s grand theft convictions could not
have caused financial harm to Mackie and Greg G. For this reason, the trial court’s order
directing Lee to pay restitution to Mackie and Greg G. was unauthorized and must be
stricken.
                                            VI.
        The Court Operations Assessment and Conviction Assessment Must Be Reduced
       At Lee’s sentencing hearing, the trial court imposed a court operations assessment
of $3,120 (§ 1465.8, subd. (a)(1)), and a conviction assessment of $2,340 (Govt. Code
§ 70373, subd. (a)(1)). Lee contends the first fee should be $40 lower, and the second
one $30 lower because Lee was convicted of 77 counts, not 78. The Attorney General
agrees. Accordingly, the assessments should be lowered by these amounts. In addition,
they should be further reduced to reflect our reversal of four money laundering
convictions, 20 identity theft convictions, and two elder theft convictions.




                                             21
                                       DISPOSITION
       The judgment is affirmed in part, and reversed in part. We reverse the money
laundering convictions as charged in counts 68, 69, 72 and 76. We reverse all of the
identity theft convictions, i.e., the convictions as charged in counts 4, 7, 10, 13, 17, 20,
24, 28, 29, 32, 35, 38, 44, 47, 49, 52, 55, 59, 62, and 65. We reverse the elder theft
convictions as charged in counts 34 and 37. The trial court must modify the restitution
order to remove restitution to Mackie and Greg G., and the funds disbursed to them from
the trust account should instead be included in the other victims’ disbursements. The trial
court must reduce the court operations assessment and the conviction assessment to
reflect the correct number of Lee’s convictions. In all other respects, the judgment is
affirmed.
       We direct the trial court to prepare an amended abstract of judgment showing
these modifications. We order the trial court to send a certified copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.




                                              22
                                 _________________________
                                 Jones, P. J.




We concur:




_________________________
Needham, J.




_________________________
Bruiniers, J.




A145038

                            23
Filed 5/2/17

                     CERTIFIED FOR PARTIAL PUBLICATION*


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                             FIRST APPELLATE DISTRICT
                                      DIVISION FIVE



THE PEOPLE,                                       A145038
        Plaintiff and Respondent,
                                                  (San Mateo County
v.                                                Super. Ct. No. SC080320)
LEWIS ERVING LEE,
                                                  ORDER CERTIFYING OPINION
        Defendant and Appellant.                  FOR PARTIAL PUBLICATION AND
                                                  MODIFYING OPINION
                                                  [NO CHANGE IN JUDGMENT]



THE COURT:
        Appellant’s request for publication, filed April 20, 2017, is granted in part. The
opinion, filed on April 4, 2017, is ordered published, with the exception of Discussion
parts III, IV, V and VI.
        The opinion is modified as follows:
        The third paragraph beginning on page 1, line 10, and continuing to page 2, line 4,
currently states:
        We affirm in part and reverse in part. We reverse four of the money
        laundering convictions based on insufficient evidence. We reverse the
        identity theft convictions because there is no evidence Lee used his victims’
        personal identifying information for an unlawful purpose without their
        consent. We reverse two elder theft convictions because the Attorney
        General concedes there was insufficient evidence to support them. We
        conclude Lee should not have to pay restitution to one set of victims, and

*
 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, the opinion is
certified for publication with the exception of parts III, IV, V and VI.

                                              1
       the trial court should amend the judgment to correct the amounts of certain
       fees. In all other respects, we affirm.
This paragraph is modified to state:
       We affirm in part and reverse in part. In the published parts of the opinion,
       we reverse four of the money laundering convictions based on insufficient
       evidence, and we reverse the identity theft convictions because there is no
       evidence Lee used his victims’ personal identifying information for an
       unlawful purpose without their consent. In the unpublished parts of the
       opinion, we reverse two elder theft convictions because the Attorney
       General concedes there was insufficient evidence to support them. We also
       conclude Lee is not required to pay restitution to one set of victims. The
       trial court shall amend the judgment to correct the amounts of certain fees.
       In all other respects, we affirm.
This modification does not change the judgment.



Dated: _______________                    _________________________________, P. J.




                                             2
The People, v. Lewis Erving Lee (A145038)


Trial Court:   San Mateo County Superior Court

Trial Judge:   Hon. Joseph E. Bergeron

Counsel:

Jeffrey A. Glick, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano,
Supervising Deputy Attorney General, Lauren Apter, Deputy Attorney General, for
Plaintiff and Respondent.




                                           3
