Filed 2/2/16 P. v. Mendiburu CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                        D068479

        Plaintiff and Respondent,

        v.                                                         (Super. Ct. No. SICRF110052197)

JOSEPH CHARLES MENDIBURU,

        Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Inyo County, Brian J. Lamb

and Randall D. White, Judges. Affirmed in part and reversed in part.

         Law Offices of Mark Pachowicz and Mark R. Pachowicz for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.

Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and

Respondent.
        A jury convicted defendant Joseph Mendiburu of grand theft of personal property

with an aggregate value in excess of $950 (Pen. Code § 487, subd. (a),1 count 1), felony

theft of cattle (former § 487, subd. (d)(1), count 3), felony theft of a truck (§ 487, subd.

(d)(1), count 4), and perjury (§ 118, count 5). Mendiburu was sentenced to a total term of

52 months in custody.2

        On appeal, Mendiburu asserts his convictions on counts 1 and 3 must be reversed

because California's jurisdictional authority over those counts was an issue that should

have been submitted to and decided by the jury, and alternatively asserts the jurisdictional

determination was unsupported by substantial evidence. He also asserts all of the

convictions must be reversed because (1) three exhibits were erroneously admitted at

trial, (2) evidence of "prior bad acts" was erroneously admitted at trial, and (3) there were

numerous instructions required sua sponte to be given but omitted. He also asserts we

must reverse the order denying his new trial motion because it was not heard by the same

judge who presided over his trial, and because the judge who heard the motion applied

the incorrect standards. He also asserts there were errors during the sentencing phase of

the trial.




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

2       The court selected the conviction on count 5 as the principle term and imposed the
midterm of 36 months on that conviction. The court imposed subordinate terms of eight
months each for the convictions on counts 3 and 4, and ordered those to run consecutive
to the term imposed on count 5. The court also imposed a subordinate term of eight
months for the conviction on count 1, but stayed that sentence pursuant to section 654.

                                              2
                                             I

                                         FACTS

       A. The Relationships

       Mendiburu's father, George, died intestate and unmarried in December 2008.

George's three children, Mendiburu and his sisters Danielle and Nicole, initially were the

administrators of George's estate and were responsible for administering the estate's

assets, which included Flying M Cattle Company, a corporation (FMC) which owned and

operated the Flying M Cattle Ranch (the Ranch) located in California.

       In February 2009 the three siblings as administrators became the officers and

directors for FMC. However, in October 2009 Mendiburu resigned as an administrator of

George's estate and also "stepped down" from his role as a board member and officer for

FMC. Thereafter, only the two sisters were administrators of the estate and board

members and officers of FMC. At that time, the sisters decided to hire Mendiburu as

manager for the Ranch, because he was familiar with its operations and they did not live

near the Ranch. They also established a new bank account for FMC that only the two

sisters could access, and Mendiburu was not permitted to handle or access any of FMC's

finances or to obtain access to the bank account. Mendiburu was not authorized to sell

any of the cattle from the Ranch without prior approval of the sisters, and was instructed

that any monies he happened to come into possession of during his management of the

Ranch was to be sent promptly to a Bakersfield, California mailing address accessible by

the sisters. In short, Mendiburu was not permitted to "have anything to do with the

money anymore."

                                             3
       B. Counts 1 and 3 (Grand Theft and Grand Theft-Cattle)

       The prosecution's theory was that, in November 2009, Mendiburu stole assets of

the Ranch by taking cattle from the Ranch in California and selling them without

permission in Nevada, and ultimately keeping the funds from the sale, which he lost at a

casino in Nevada.

       Before cattle may be transported from a ranch and sold at auction, they must be

inspected by a brand inspector and the inspector must issue an inspection certificate

authorizing the transfer. In November 2009, Mendiburu contacted a brand inspector to

come to the Ranch to conduct the inspection required to transfer and sell the cattle. The

inspector inspected 83 head of cattle belonging to the Ranch, as well as another 8 head

belonging to Mendiburu, and issued the certificate authorizing the transfer of the cattle to

an auction house in Nevada for sale. The Nevada auction house received the cattle,

listing Mendiburu as consignor, and sold consigned Ranch cattle on November 18, 2009.

The Nevada auction house issued a check, payable to Flying M Ranch, for $34,221.44,

representing the net proceeds for the sale of the Ranch's cattle.3 However, the auction

house mistakenly sent that check to another ranch (also named "Flying M.") with which

the auction house also did business. A few weeks after the sale, that mistake was

discovered and Mendiburu went to the Nevada auction house, at which time the Nevada

auction house handed Mendiburu a new check (again made out to the Flying M Ranch)

for $34,221.44.


3       The auction house also sent a check to Mendiburu for the net proceeds from the
sale of his cattle.
                                             4
       Mendiburu then tried to cash the check at a Nevada bank, which was unable to

cash the check because it was made out to a business. However, the bank was able to

convert the check into cashier's checks (which are as good as cash) made payable to the

Ranch but specifying Mendiburu as "remitter." That same day, Mendiburu took those

cashier's checks to a casino in Nevada, cashed them at the Nevada casino, and ultimately

gambled away the proceeds.

       Mendiburu was required to obtain his sisters' permission to sell Ranch's cattle, but

did not obtain their permission (or even tell them) of the November sale or that he

obtained the funds from that sale. By March 2010, the sisters had hired a private

investigator because of their concern over Mendiburu's activities at the Ranch, and it was

after they hired the investigator that they learned of the November sale and what

Mendiburu did with the proceeds. In May 2010, the sisters met with Mendiburu and

confronted him with the evidence obtained by the private investigator concerning the

cattle sale and disposition of the proceeds. After he admitted he had taken the money but

adopted a cavalier attitude, the sisters fired him as manager.

       C. Counts 4 and 5 (Theft of Truck and Fraud)

       At the time of Father's death in 2008, he owned a Toyota truck. In May 2009,

when Mendiburu was still one of the co-administrators of his estate, he went to the

California Department of Motor Vehicles (DMV) and completed a form titled "Affidavit

for Transfer without Probate." In that document, he averred under penalty of perjury that

he was the "sole person" who succeeded to Father's property and, based on that affidavit,



                                             5
he obtained title to the Toyota in his own name. None of the individual administrators of

the estate were authorized to take any item from the estate as their personal property.

                                              II

                     THE ALLEGED JURISDICTIONAL ERRORS

       Mendiburu argues his convictions on counts 1 and 3 must be reversed because

California's jurisdictional authority over those counts was an issue that should have been

submitted to and decided by the jury. He argues the court erred in not sua sponte

instructing the jury that it had to determine, beyond a reasonable doubt, the geographical

location at which Mendiburu formed the specific intent to steal the cattle and the

proceeds from the cattle sale to invest the California court with jurisdiction over the

offenses charged against him. He alternatively argues that, even if jurisdictional elements

are not a jury question, the court erred when it did not determine the issue in connection

with his motion to dismiss.

       A. Applicable Principles

       California's statutory law governing territorial jurisdiction in criminal cases, found

in sections 27 and 778, provides in relevant part that "persons are liable to punishment

under the laws of this state: [¶] . . . who commit, in whole or in part, any crime within this

state" (§ 27, subd. (a)(1)), and also specifies that "[w]henever a person, with intent to

commit a crime, does any act within this state in execution or part execution of that

intent, which culminates in the commission of a crime, either within or without this state,

the person is punishable for that crime in this state in the same manner as if the crime had

been committed entirely within this state" (§ 778a, subd. (a)). Our Supreme Court has

                                              6
explained that, under the provisions of section 778a, subdivision (a), "California has

territorial jurisdiction over an offense if the defendant, with the requisite intent, does a

preparatory act in California that is more than a de minimis act toward the eventual

completion of the offense." (People v. Betts (2005) 34 Cal.4th 1039, 1047 (Betts).)

       B. Proceedings at Trial

       Prior to trial, Mendiburu moved to set aside the information under section 995,

arguing the evidence adduced at the preliminary hearing did not support the exercise of

territorial jurisdiction over counts 1 and 3 because there was no evidence that Mendiburu

committed any acts in California in preparation for the alleged thefts of the cattle and the

proceeds of the sale. The prosecution opposed the motion, noting that on a motion to set

aside an information, " 'the question of guilt or innocence of the defendant is not before

the court, nor does the issue concern the quantum of evidence necessary to sustain a

judgment of conviction. The court is only to determine whether the magistrate, acting as

a man of ordinary caution or prudence, could conscientiously entertain a reasonable

suspicion that a public offense has been committed in which the defendant had

participated.' " (People v. Ross (1972) 25 Cal.App.3d 190, 195.) As long as there is

some evidence to support the information (including drawing every reasonable inference

from the evidence in favor of the information), the court should deny a section 995

motion. (People v. Velasquez (1975) 53 Cal.App.3d 547, 553.) The People argued the

evidence—that Mendiburu moved cattle from the Ranch and then converted the proceeds

from the sale to his personal use without authority to do so—was adequate to provide a

reasonable suspicion that his preparatory acts in California (more than de minimis acts)

                                               7
were part of his planned theft, and therefore California could exercise territorial

jurisdiction over the charged offenses. The trial court denied Mendiburu's motion to set

aside the information "[f]or the reasons set forth in the People's . . . [o]pposition."

       C. The Jurisdictional Issue Is Not a Jury Question

       Mendiburu argues that, under a series of pre-Betts cases,4 it was error not to

submit the issue of jurisdiction to the jury for its determination of whether or not the

charged crimes were committed, in whole or in part, within California. He notes the

Betts court recognized that "[n]one of [the jurisdictional] statutes . . . addresses the

question of whether the issue of territorial jurisdiction in a criminal proceeding should be

determined by the trial court or by a jury. Section 27, like sections 777b through 778b, is

silent on this matter. Nor has our court ever directly addressed the question. In a number

of cases, we have discussed issues related to territorial jurisdiction in the context of a jury

trial and assumed that the issue properly could be presented to the jury, but those

decisions have not directly confronted the question whether a jury trial is required."

(Betts, supra, 34 Cal.4th 1047-1048.) However, the specific argument was then resolved

in Betts, when it determined that, although the "courts of other states are divided on the

question whether the determination of territorial jurisdiction in a criminal case is for the

jury or the trial court" (id. at p. 1051), some jurisdictions "have concluded that the court,

not the jury, decides whether territorial jurisdiction has been established in a criminal



4      Mendiburu cites People v. Anderson (1961) 55 Cal.2d 655, People v. Chapman
(1977) 72 Cal.App.3d 6, and People v. Marvin (1941) 48 Cal.App.2d 180, to support his
claim that he was entitled to have the jury decide the issue of jurisdiction.
                                               8
case" (ibid.), and California would adopt that approach because territorial jurisdiction,

although involving questions of fact, "is a procedural issue that does not determine the

guilt or innocence of the accused. Therefore, the reasoning we applied in [People v.

Posey (2004) 32 Cal.4th 193] suggests that the trial court, rather than a jury, should

decide the issue of territorial jurisdiction." (Betts, at p. 1049.) Moreover, the Betts court

explained, "[b]ecause territorial jurisdiction is a procedural matter that relates to the

authority of California courts to adjudicate the case and not to the guilt of the accused or

the limit of authorized punishment, a jury trial on the factual questions that establish

jurisdiction is not required by the federal Constitution" (id. at p. 1054), the defendant is

not entitled to a jury determination of territorial jurisdiction under the California

Constitution. (Id. at p. 1054, fn. 10.)

       After Betts, the predicate question of territorial jurisdiction is for the trial court

rather than the jury. We reject Mendiburu's claim that he was entitled to a jury trial on

whether California had jurisdiction to prosecute him for the charged offenses.

       D. Substantial Evidence Supported the Jurisdictional Determination5

       Mendiburu alternatively argues there was no evidence to support the trial court's

determination that California could exercise jurisdiction over the charges contained in



5       Mendiburu peremptorily suggests the court never determined the issue of
jurisdiction. However, the entire focus of Mendiburu's section 995 motion, and the
People's opposition to that motion, was whether there was adequate evidence to show
California had a proper basis for exercising jurisdiction over counts 1 and 3. Because the
trial court's denial of Mendiburu's motion challenging the exercise of jurisdiction
resolved the issues adversely to Mendiburu's claims, the trial court impliedly found a
preponderance of the evidence supported the exercise of jurisdiction.
                                               9
counts 1 and 3 because there was no evidence from which the trial court could have

found he possessed the requisite criminal intent when he arranged to ship the cattle from

California in November.

       Because California has territorial jurisdiction if the defendant, "with the requisite

intent, does a preparatory act in California that is more than a de minimis act toward the

eventual completion of the offense" (Betts, supra, 34 Cal.4th at p. 1047), and Mendiburu

does not dispute the evidence of his actions in California (of arranging for the cattle to be

shipped out of state) amply satisfies the actus reas for territorial jurisdiction of a "de

minimis act toward the eventual completion of the offense" (ibid.), his challenge to

territorial jurisdiction rests solely on his claim there was no substantial evidence of his

mens rea at the time of the shipment. However, the courts have long recognized that the

issue of an actor's specific intent may, "and usually must be, inferred from circumstantial

evidence." (People v. Cole (1985) 165 Cal.App.3d 41, 48.) In the analogous context of

whether the evidence was sufficient to support a conviction for an offense requiring

specific intent, the Cole court explained that " '[w]hen a specific intent is an element of

the offense it presents a question of fact which must be proved like any other fact in the

case. It is none the less a question of fact though it cannot be proved by direct and

positive evidence. All the circumstances surrounding the act furnish the evidence from

which the presence or absence of the specific intent may be inferred by the jury . . . .'

[Quoting People v. Maciel (1925) 71 Cal.App. 213, 218-219.] [¶] . . . . [¶] . . . '[E]ven

though the appellate court may itself believe that the circumstantial evidence might be

reasonably reconciled with the defendant's innocence, this alone does not warrant

                                              10
interference with the determination of the trier of fact. [Citations.] Whether the evidence

presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains

whether any reasonable trier of fact could have found the defendant guilty beyond a

reasonable doubt.' [Quoting People v. Towler (1982) 31 Cal.3d 105, 118.]" (Cole, at

pp. 48-49.)

         That same approach is applied to trial court determinations of territorial

jurisdiction. In Betts, the defendant contended the evidence was insufficient to support

the trial court's conclusion that California had territorial jurisdiction over the offenses

occurring outside of California because there was no evidence he intended to molest the

victims when he drove them away from California into other states. (Betts, supra, 34

Cal.4th at p. 1055.) Betts, after reiterating that a defendant may be prosecuted in a

California court if the defendant, with the intent to commit a crime, did any act within

this state in execution or part execution of that intent, stated that the "prosecution has the

burden of proving the facts necessary to establish territorial jurisdiction by a

preponderance of the evidence." (Ibid.) Betts then discussed why the defendant's claim

there as to the insufficiency of the evidence to support territorial jurisdiction was

unpersuasive, noting an appellate court must uphold a trial court's determination on

factual issues if supported by substantial evidence, and then explaining why the

circumstantial evidence and inferences therefrom supported the determination he

possessed the requisite intent when he performed the acts in California. (Id. at pp. 1055-

1056.)



                                               11
       Here, there was evidence to support the inference that Mendiburu possessed the

requisite intent at the time he arranged to transport the cattle.6 First, he knew he had no

authority to sell cattle without prior approval of the sisters, but he nevertheless arranged

for an inspection in and shipment from California while keeping his actions secret from

the sisters. Moreover, any proceeds from cattle sales were supposed to be deposited into

a bank account established in October 2009 for the Ranch, over which Mendiburu had no

control or authority, but the sales proceeds were not directed to that account, and there

was no evidence Mendiburu directed the auction house to send the funds to that account.

Finally, there was some evidence Mendiburu had previously misappropriated Ranch

assets, which supported an inference that he did not form the intent to again

misappropriate funds only after crossing into Nevada. (Betts, supra, 34 Cal.4th at

pp. 1055-1056 ["Defendant's past acts of child molestation also support the inference that




6       Mendiburu's contrary argument rests on his claim that, because there was
circumstantial evidence supporting a conclusion he formed the requisite intent only after
he picked up the check in Nevada, and a jury is instructed that when two or more
reasonable conclusions can be drawn from circumstantial evidence regarding a
defendant's intent the jury must adopt the inference of an innocent intent, the inference
must be drawn that he lacked the requisite intent until after he entered Nevada. This
argument misconstrues the standard of appellate review. "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 [that] 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 be reasonably reconciled
with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean
(1988) 46 Cal.3d 919, 932-933.)

                                             12
the idea of molesting Nichole did not first come to his mind after they had left the

state."].)

                                             III

                         THE ALLEGED EVIDENTIARY ERRORS

        Mendiburu contends the trial court erroneously admitted certain exhibits at trial,

and permitted evidence of Mendiburu's prior bad acts, and these errors were prejudicial.

We examine each claim of error pertaining to the specific exhibits and testimony

admitted at trial.

        A. Exhibit 24A

        The prosecution sought to admit into evidence a document, entitled

"Acknowledgement And Agreement By Heirs To Acts, Accounting, And Other Matters

Relating To The Administration Of The Estate Of George L Mendiburu" (the

Agreement). Ultimately, the trial court ruled a redacted version of the Agreement would

be admitted into evidence as Exhibit 24A. Mendiburu argues this ruling was error

because (1) it was irrelevant, (2) it was inadmissible under Evidence Code section 1101

and its admission violated an earlier in limine ruling excluding evidence of Mendiburu's

"prior bad acts," (3) it was inadmissible under Evidence Code section 1152, and (4) it

was error to rely on Evidence Code section 356 to admit the entire document.

        Background

        The Agreement

        In January 2010, Mendiburu and his sisters signed the Agreement, which had an

effective date of September 1, 2009, and contained certain recitals, including that in

                                             13
October 2009 the sisters learned Mendiburu had misappropriated approximately $85,000,

and that in October 2009 Mendiburu resigned as an administrator of the estate and also

from his position as an officer and director of FMC, the corporate entity that owned and

operated the Ranch. As part of the agreement, the parties agreed to treat the amounts

misappropriated (as well as the salary he was paid between April and October 2009) as a

"Loan" from FMC to Mendiburu, and agreed Mendiburu would be hired as an at-will

employee of FMC. The prosecution subsequently sought, and obtained, leave to

introduce a redacted version of the Agreement.

       The Prior in Limine Motion

       Prior to trial, Mendiburu moved in limine to exclude the sisters from referring to

their beliefs that Mendiburu engaged in the use of controlled substances, had a gambling

problem, or diverted other funds from the Ranch for his personal use. The People argued

that, although Mendiburu's prior bad acts were inadmissible to show his propensity to

steal from the Ranch, Mendiburu's prior bad acts were admissible because his use of

controlled substances and/or gambling problem was relevant to his motive to steal from

FMC and his prior misappropriations showed a common scheme or plan to feed his

gambling and drug habits using corporate money. After an extended discussion, during

which the court expressed concern over how the prosecution could lay an adequate

foundation for the evidence proving Mendiburu's alleged gambling habits and alleged

prior thefts, the court granted the motion to preclude evidence of Mendiburu's prior bad

acts, but cautioned it could "revisit this later" if the prosecution sought to put on such



                                              14
evidence "because I'm still a little unclear about how it would come in . . . so we may

revisit that if and when the time comes to do that."

       Objections to and Admission of Exhibit 24A

       During Danielle's testimony about the sisters' concerns over Mendiburu's

administration of the Ranch and the changes in Mendiburu's powers and responsibilities

with the Ranch in November 2009, the People showed Exhibit 24 to Danielle and asked if

a paragraph of that document addressed Mendiburu's position with the Ranch starting

November 1, 2009. Mendiburu interposed a hearsay objection to the contents of the

document, and the People initially argued it was admissible under the business records

exception. The court observed that, because Mendiburu signed the document, it could be

admissible under the admissions exception to the hearsay rule, and Mendiburu stated that

it "[a]rguably . . . might be" but that it was still inadmissible under Evidence Code

sections 1152 and 1154. The court overruled that objection, but invited other argument

on the admissions exception. The prosecutor clarified that it was seeking admission of

the exhibit for the purpose of showing Mendiburu agreed to his position with FMC (as

well as the accompanying salary and benefits) and "not . . . for the entire document," and

the defense stated it would not object to a redacted version of the document if that was

the sole purpose for its admission. However, after additional discussion on whether only

certain portions of the Agreement would be admitted, the court determined under

Evidence Code section 356 it was necessary that the entirety of the agreement be

admitted, and it was admissible under the party admissions exception to the hearsay rule.



                                             15
       Although the court allowed the prosecutor to continue using the entirety of the

Agreement in his subsequent questioning of Danielle as a result of that ruling, the

document was subsequently redacted in reaction to the parties' subsequent discussion

about admitting the Agreement into evidence. At that time, the defense resurrected its

objection under Evidence Code section 1101 to those recitals in the document that

described the fact and amount of Mendiburu's prior misappropriations, arguing it was

inadmissible as "prior bad acts." The prosecution asserted the clauses, by describing that

the sisters had stripped Mendiburu of authority over Ranch property because of his prior

misappropriations, was relevant to preempt any claim by Mendiburu that he might have

believed he had a right to dispose of Ranch property, and the probative value of that

evidence outweighed any prejudicial impact of such evidence. The court agreed and,

after redacting references to the amount of Mendiburu's prior misappropriation to create

Exhibit 24A, permitted the prosecution to introduce that exhibit.

       Analysis

       The Relevance Claim

       Mendiburu first argues admission of Exhibit 24A was error because it was

irrelevant. However, Mendiburu cites nothing suggesting he raised that objection below,

and he cannot obtain reversal on that ground. (People v. Visciotti (1992) 2 Cal.4th 1, 51-

52.) Moreover, even were it preserved, the evidence was relevant. Evidence is relevant

when it has "any tendency in reason to prove or disprove any disputed fact that is of

consequence to the determination of the action." (Evid. Code § 210.) The test is whether

or not the evidence tends logically, naturally, and by reasonable inference to establish any

                                            16
fact material for the prosecution, or to overcome any material matter sought to be proved

by the defense. (People v. Freeman (1994) 8 Cal.4th 450, 491.) The document provided

support for the sisters' testimony that Mendiburu in fact did not have authority to sell the

cattle, and could provide factual support that preempted a claim Mendiburu believed he

was entitled to convert the cattle to his personal benefit. We conclude the evidence was

relevant.

       The Evidence Code Section 1101 Claim

       Mendiburu primarily asserts the court abused its discretion when it concluded the

evidence was not inadmissible under Evidence Code section 1101, subdivision (a). That

provision generally prohibits the admission of a prior criminal act against a criminal

defendant when it is "offered to prove his or her conduct on a specified occasion."

However, subdivision (b) of the statute provides that such evidence is admissible "when

relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake or accident . . .) other than his or her disposition

to commit such an act." (Evid. Code, § 1101, subd. (b).) "Moreover, to be admissible,

such evidence ' " 'must not contravene other policies limiting admission, such as those

contained in Evidence Code section 352.' " ' [(People v. Lewis (2001) 25 Cal.4th 610,

637; [citation].)] Under Evidence Code section 352, the probative value of the proffered

evidence must not be substantially outweighed by the probability that its admission

would create substantial danger of undue prejudice, of confusing the issues, or of

misleading the jury. [Citations.] [¶] We review for abuse of discretion a trial court's



                                             17
rulings on relevance and admission or exclusion of evidence under Evidence Code

sections 1101 and 352." (People v. Cole (2004) 33 Cal.4th 1158, 1194-1195.)

       Mendiburu asserts Exhibit 24A was barred because it referenced his prior

misappropriations. However, the prosecutor explained it was offered for the

nonprohibited purposes of showing he understood and agreed to substantial limitations on

his powers (and on his salary and benefits), and to show he was aware of those

limitations, therefore undermining any "claim of right" defense. These facts, in addition

to being relevant to buttressing the credibility of the sisters' testimony (and to obviating

any claim the sisters were merely acting vindictively toward Mendiburu in testifying he

improperly converted estate property), provided evidence relevant to Mendiburu's

"knowledge" and/or "absence of mistake" as to his ability to sell the cattle and convert the

proceeds. (Cf. People v. Tufunga (1999) 21 Cal.4th 935, 945-948 [good faith claim of

right to title or ownership of specific property taken can negate the element of felonious

taking necessary to establish theft].)

       Because the evidence was admissible under Evidence Code section 1101,

subdivision (b), for these nonprohibited purposes, the issue is whether the court abused

its discretion when it concluded the probative value of the evidence for those

nonprohibited purposes was outweighed by its prejudicial impact. Mendiburu does not

argue on appeal why or how the admission was an abuse of the trial court's discretion

under Evidence Code section 352, but instead asserts the trial court never engaged in the

weighing process envisioned by that section. However, as long as the record as a whole

supports the inference that the court understood and performed its obligations, "[a] trial

                                              18
court ' "need not expressly weigh prejudice against probative value—or even expressly

state that [it] has done so . . . ." ' [Quoting People v. Waidla (2000) 22 Cal.4th 690, 724,

fn. 6.]" (People v. Mendoza (2000) 24 Cal.4th 130, 178.) Here, the prosecutor expressly

argued why the probative value of Exhibit 24A outweighed its prejudicial impact, and the

defense interposed its argument on that issue, after which the judge ruled the exhibit

would be admitted. Nothing further was required. (Mendoza, at p. 178.)

       The Evidence Code Section 1152 Claim

       Mendiburu argues admission of Exhibit 24A was barred by Evidence Code section

1152, subdivision (a), which provides:

          "Evidence that a person has, in compromise or from humanitarian
          motives, furnished or offered or promised to furnish money or any
          other thing, act, or service to another who has sustained or will
          sustain or claims that he or she has sustained or will sustain loss or
          damage, as well as any conduct or statements made in negotiation
          thereof, is inadmissible to prove his or her liability for the loss or
          damage or any part of it."

       However, Evidence Code section 1152 ordinarily has no application in criminal

cases. (People v. Muniz (1989) 213 Cal.App.3d 1508, 1515.) Moreover, even were the

statute applicable, "evidence of efforts to compromise are not admissible [citation] except

to the extent that they contain admissions against interest or evidence otherwise

admissible." (Store of Happiness v. Carmona & Allen (1957) 152 Cal.App.2d 266, 273,

italics added.) As previously explained, Exhibit 24A was not admitted for the purposes

barred by Evidence Code section 1152 (i.e. to prove Mendiburu was liable for his prior

misappropriations) but instead contained evidence admissible on other issues (i.e., his

actual authority over Ranch property and whether he subjectively understood those

                                             19
limitations). Accordingly, Evidence Code section 1152 did not bar admission of Exhibit

24A.

       B. Exhibit 26

       Mendiburu next argues a letter written by Nicole to Mendiburu in May 2010,

introduced as Exhibit 26, was improperly admitted. He objected at trial to admission of

Exhibit 26 on the grounds it contained implied references to prior bad acts in violation of

Evidence Code section 1101, and its prejudicial impact outweighed any probative value

under Evidence Code section 352, and argues on appeal the court's ruling admitting

Exhibit 26 was an abuse of discretion.7

       Background

       Nicole testified that, at the meeting in May when they fired Mendiburu after

confronting him about his diversion of the proceeds he gambled away, the sisters also

told Mendiburu about an offer to buy the Ranch and discussed the division of the

proceeds. Although Mendiburu initially refused to consider the offer, he later indicated a

willingness to consider it. Nicole testified she "was hoping that he would take it, leave

the ranch, take the offer, and go get help." The prosecutor then showed Nicole a letter

she wrote to Mendiburu the following day, ultimately introduced as Exhibit 26, that

included (on the first page) a discussion that the sisters would "allow you to take your

truck with you (we need to transfer truck from [Ranch] to you ASAP)." Nicole was


7      Mendiburu also argues Exhibit 26 was hearsay. However, he did not object at trial
on that ground, and that claim of error is therefore waived. (People v. Wheeler (1992) 4
Cal.4th 284, 300 ["defendant waived any hearsay claim by making no trial objection on
that specific ground"].)
                                            20
asked to which truck they were referring, and she explained it was a Ford flatbed truck,

not the Toyota truck. She stated she was hopeful that, by selling the ranch and giving

him the Ford truck, it would "solve this big mess," and she twice stated she hoped this

solution would allow him to "go get help." She also later stated she delayed meeting with

the sheriff's department for a month after the meeting because "I wanted him to go get

help. I didn't want to turn him in." Nicole's direct testimony contained no express

references to either Mendiburu's alleged substance abuse problems or the sisters' belief

that he had a gambling problem.

       On cross-examination, the defense questioned Nicole about the offer in the letter

to let him keep the truck, and she responded the offer was "contingent upon him leaving

the ranch, accepting the offer, and hopefully going into rehab," but defense counsel then

asked "[t]hat was not stated in the letter, though, was it?" She responded that she had

"talked to him about rehab in that [letter] [s]o, yes, that whole context of him taking the

flatbed was about him getting help and taking the offer." Defense counsel again sought

confirmation from Nicole that the language she used in the letter regarding him keeping

the truck did not specify it was "contingent on accepting the offer," and she answered

"[t]hat sentence was not but if you take in the whole letter, you'll see how I'm talking

about . . . get[ting] a fresh start, go to rehab, help yourself, leave the ranch . . . . You have

a vehicle to leave the ranch and go get help for yourself."

       During the discussion about admitting the exhibits, defense counsel had no

objection to the first page of the letter being admitted. However, the defense objected to

the second page because, even though there was "some limited testimony about" the

                                               21
second page, the defense argued it was "unduly prejudicial." The prosecutor responded

that the defense had "on cross elicited testimony" about the portion of the letter on page

two in which Nicole stated she hoped Mendiburu would "check yourself into a good 90

day rehab to help yourself . . . [¶] . . . and get healthy," and therefore the entire letter

should be admitted. The defense responded that, although Nicole's wish that Mendiburu

enter "rehab" was in evidence, the fact the letter referred to a "90 day" rehab and

"checking yourself in and getting healthy" was unduly prejudicial and its admission

would conflict with the court's in limine ruling barring evidence of Mendiburu's prior bad

acts. The court ruled it was not unduly prejudicial under Evidence Code section 352 to

admit the entire letter and ruled the entire letter would be admitted.

       Analysis

       Mendiburu argues on appeal the court's ruling admitting the second page of

Exhibit 26 was an abuse of discretion. He suggests the letter, by referring to Nicole's

wish that Mendiburu "check yourself into a good 90 day rehab . . . and get healthy,"

violated Evidence Code section 1101, subdivision (a)'s proscription against the

introduction of evidence of Mendiburu's "character or a trait of his . . . character . . . to

prove his . . . conduct on a specified occasion," and its prejudicial impact outweighed its

probative value. However, the letter was probative on whether the sisters were acting

vindictively toward Mendiburu or whether they were instead concerned for his welfare,

which was relevant to their credibility. Additionally, because the defense's questions to

Nicole about the letter sought to prove Mendiburu was permitted to take a truck from the

Ranch without conditions, while Nicole testified the entirety of the letter showed

                                               22
Mendiburu was permitted to take a truck from the Ranch as part of the overall effort to

sell the Ranch and move forward, the entirety of the letter was proper matter for the jury

to consider. (Cf. Evid. Code, § 356.)

       We are unconvinced by Mendiburu's claim that the trial court abused its discretion

in concluding the letter's prejudicial impact did not outweigh its probative value.

Although the letter twice referred to the sisters' hope Mendiburu would check into

"rehab," that was not evidence of which the jury was unaware, nor did it inform the jury

(as argued by Mendiburu on appeal) that his gambling problem (information already in

evidence) was accompanied by a drug abuse problem. Under these circumstances, it was

not an abuse of the trial court's discretion to admit the entirety of Exhibit 26.

       C. Exhibit 22

       Mendiburu asserts the court erred in permitting the introduction of a set of

documents, obtained from the DMV, which showed how registered title to the Toyota

truck was transferred to Mendiburu, as Exhibit 22. The fourth page is a completed form

titled "Affidavit for Transfer without Probate" (the Affidavit), in which Mendiburu

averred under penalty of perjury that he was the "sole person" who succeeded to Father's

property.8 At trial, the defense specified it was not objecting to the foundation for the

document, but was instead objecting that it was hearsay that did not qualify for admission

under Evidence Code section 1280 because there was no foundational showing the



8    At trial, Danielle identified the writing on the Affidavit as Mendiburu's
handwriting and the signature on the Affidavit, made under penalty of perjury, as
Mendiburu's signature.
                                              23
contents of the Affidavit qualified as an official record (within the meaning of Evid.

Code, § 1280) as a writing made "by and within the scope of a duty by a public

employee." The court admitted the document because the disputed Affidavit was

admissible "under the operative act doctrine."

       Legal Framework

       The court in In re Shannon C. (1986) 179 Cal.App.3d 334, 341-342, explained the

different focuses of Evidence Code sections 1530 and 1280:

          "Section 1530 is found in chapter 2 of division 11 of the Evidence
          Code concerned with 'Secondary Evidence of Writings.' Section
          1530 codifies an exception (for public records) to the best evidence
          rule, which ordinarily requires that an original writing be admitted to
          prove the content of a writing (§ 1500). [¶] 'Section 1530 of the
          Evidence Code is concerned with the use of a copy of a writing in
          official custody to prove the content of the original.' [Citation.]
          Section 1530 does not allow either the original or the copy of the
          writing to be used to prove the truth of the matter asserted in the
          content of the writing. 'It is to be noted that [Evidence Code sections
          1530 and 1452 through 1453] provide the means of authenticating
          the existence and content of an original writing in the custody of a
          public entity and of authenticating the copy proffered in evidence as
          a true copy of the original. The admissibility of the original writing
          in possession of the public entity must be based on some exception to
          the hearsay rule such as the admission of a party [(Evidence Code
          section 1220)] or the exception for entries in official or public
          records [(Evidence Code section 1280)].' [Quoting 1 Jefferson, Cal.
          Evidence Benchbook (2d ed. 1982) § 5.1, p. 250, italics added by
          Shannon court.]"

       The interplay between Evidence Code section 1530 and the hearsay rules provides

a two-step process for admitting documents held by entities like the DMV. Evidence

Code section 1530 merely specifies the methodology for establishing the foundation for

admitting a copy of what is in the public records, thereby satisfying the first step of


                                             24
allowing a copy to be admitted, but Evidence Code section 1530 does not speak to the

second step of the analysis, which is whether the content of that writing is admissible to

prove the truth of the matters asserted in that writing. That second step requires either

that the content be admissible hearsay (by qualifying for admission under some exception

to the hearsay rule) or because it is being admitted for a non-hearsay purpose. (See, e.g.,

People v. Harvey (1991) 233 Cal.App.3d 1206, 1220 ["hearsay is a two-pronged inquiry.

In order to constitute hearsay, a statement must be received as proof of the truth of the

matter stated. If the statement is received as proof of something other than the truth of

the statement itself, it is not hearsay."].)

       Analysis

       The court correctly ruled the Affidavit was admissible. Mendiburu expressly

stated below that he was not challenging the first step—whether Evidence Code section

1530's methodology for establishing the foundation for admitting the copy of what was in

the public records had been satisfied. Instead, Mendiburu argued below there was no

showing any exception to the hearsay rule had been satisfied, and therefore the Affidavit

was inadmissible to prove the truth of the content of the Affidavit. However, the court

correctly noted the Affidavit was not introduced to prove the truth of its contents (i.e. that

Mendiburu was the "[s]ole person . . . who succeeded to the property of the decedent,")

but was admissible under the operative acts doctrine. This ruling was correct:

           "Documents not offered for the truth of the matter asserted are, by
           definition, not hearsay. Hearsay is defined . . . as 'evidence of a
           statement that was made other than by a witness while testifying at
           the hearing and that is offered to prove the truth of the matter stated.'
           Where ' "the very fact in controversy is whether certain things were

                                               25
          said or done and not . . . whether these things were true or false, . . .
          in these cases the words or acts are admissible not as hearsay[,] but
          as original evidence." ' [(Quoting 1 Witkin, Cal. Evidence (4th ed.
          2000) Hearsay, § 31, p. 714.)] For example, documents containing
          operative facts, such as the words forming an agreement, are not
          hearsay. [Citations.] The operative facts rule also applies in an
          action for fraud. [(Citing 1 Witkin, supra, Hearsay, § 33, p. 715 ['In
          an action for . . . deceit, the words spoken, written, or printed may be
          proved']; [citation].)]" (Jazayeri v. Mao (2009) 174 Cal.App.4th
          301, 316.)

       Mendiburu was charged with perjury under section 118, which required proof of a

willful statement, under oath, of any material matter that the witness knows to be false.

Exhibit 22 comprised the "certifi[fication] under penalty of perjury" (§ 118, subd. (a)),

which allegedly violated the statute, and therefore its admission was permitted under the

operative acts doctrine.9

       D. The Sisters' Testimony

       Mendiburu argues the prosecution violated the in limine ruling, which had

provisionally precluded testimony about his alleged drug abuse, alleged gambling

problem, and his prior thefts, by eliciting testimony peripherally adverting to those

subjects. The trial court's ruling, although granting the motion to preclude evidence of

Mendiburu's prior bad acts, was subject to the proviso that the court could "revisit this

later" if the prosecution sought to put on such evidence, because the court was "still a



9      In his reply brief, Mendiburu asserts the operative acts doctrine did not apply
because, although Danielle testified the writing on the form was his, there was no
evidence he checked the box on the form containing the false statement. However, he
cites no authority suggesting that the Affidavit would or would not qualify for admission
into evidence under the operative acts doctrine depending on whether he signed that
document before or after the box was checked.
                                             26
little unclear about how it would come in . . . so we may revisit that if and when the time

comes to do that."

       In two of the passages Mendiburu asserts violated the ruling, however, the court

sustained objections (and ordered stricken) two statements by Danielle that were not

responsive to the prosecutor's questions.10 In many of the other passages Mendiburu

complains violated the ruling, the testimonial references were so oblique that they drew

no objection from the defense, which forfeits any claim of error. (People v. Hinton

(2006) 37 Cal.4th 839, 893.)

                                            IV

                     THE ALLEGED INSTRUCTIONAL ERRORS

       Mendiburu next asserts the trial court was sua sponte required to give (1) a

unanimity instruction regarding count 1, and (2) a mistake of fact and/or mistake of law

instruction.11




10       In one statement, the prosecutor asked about the May conversation between the
sisters and Mendiburu about the theft of the cattle, and Danielle began her response by
first stating the sisters wanted to make sure nothing was being taken and had hired a
private investigator, but her description of the background was cut off when the court
sustained the defense objection and ordered the testimony stricken. Shortly thereafter,
and again in response to the prosecutor's question about what Mendiburu said in that
meeting, Danielle said the sisters referenced the fact that they believed he had a gambling
problem, the court again sustained the defense objection and ordered the testimony
stricken.

11     Mendiburu also contends the trial court erred by not giving CALCRIM 1806,
which instructs that, if a defendant charged with embezzlement has a good faith belief he
acted with authorization, he is not guilty of the crime. However, that instruction was
given.
                                            27
       A. The Unanimity Claim

       "In a criminal case, a jury verdict must be unanimous. [Citations.] . . .

Additionally, the jury must agree unanimously the defendant is guilty of a specific crime.

[Citation.] Therefore, cases have long held that when the evidence suggests more than

one discrete crime, either the prosecution must elect among the crimes or the court must

require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th

1124, 1132 (Russo).) The requirement of unanimity as to the criminal act "is intended to

eliminate the danger that the defendant will be convicted even though there is no single

offense which all the jurors agree the defendant committed." (People v. Sutherland

(1993) 17 Cal.App.4th 602, 612.) A court must give a unanimity instruction " 'when

conviction on a single count could be based on two or more discrete criminal events,' but

not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete

criminal event.' " (Russo, at p. 1135.) The court sua sponte must give the unanimity

instruction "where the evidence adduced at trial shows more than one act was committed

which could constitute the charged offense, and the prosecutor has not relied on any

single such act." (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)

       Here, Mendiburu was charged in count 1 with "theft of personal property."

However, the evidence showed three potential criminal actions, separate in time and

place and manner, and the People do not contest on appeal that any one of these acts

would have supported the jury's conviction for stealing personal property as alleged in

count 1. Those distinct acts were Mendiburu's unauthorized taking of the cattle from the

Ranch in Inyo County sometime around mid-November 2009, his conversion of the

                                             28
check to his own benefit a few weeks later in Nevada, and his transferring title to the

Toyota truck to his own name in May 2009 in California. Accordingly, a unanimity

instruction was required sua sponte unless the prosecution elected only one of those acts

as the basis for the charge. (Russo, supra, 25 Cal.4th at p. 1132.)

       The record does not show the prosecutor clearly elected which criminal act formed

the basis for count 1. During closing argument, the prosecutor argued "[y]ou have got

three thefts: theft of a truck, theft of the cattle, and theft of property . . . . [¶] [Y]ou can

find theft under two different theories. You can find [Mendiburu] made a theft by

larceny or by embezzlement." When discussing the "larceny form" of theft, the

prosecutor noted one element was that Mendiburu moved the stolen property "even a

small distance and kept it for any time . . . however brief. Now, that's with regard to

Count 1. Well, actually, all the counts alleging theft." This argument provided no clear

election suggesting the prosecution was eschewing theft of the truck as the basis for

convicting Mendiburu on count 1. Moreover, the prosecutor also stated "with regard to

Count 1, which alleges theft [of] property from [the Ranch], you can look at it one of two

ways. That property could have been the cows or it could have been the money . . . .

You have to parse that out." This argument again provided no clear election suggesting

the prosecution was electing which taking provided the basis for convicting Mendiburu

on count 1.

       Under these circumstances, where the evidence showed three potential criminal

acts (separated by time, place and manner) that could have formed the basis for the theft

alleged in count 1, it was error not to give a unanimity instruction. Moreover, the People

                                               29
have made no effort on appeal to rebut Mendiburu's argument that the error was

reversible error under Russo because some jurors could have found Mendiburu guilty on

count 1 for one criminal act while others convicted him on count 1 for distinct acts. (See,

e.g., People v. Thompson (1995) 36 Cal.App.4th 843, 852-853 [failure to give a

unanimity instruction governed by harmless error standard under Chapman, and where

different acts by defendant diverting funds could have served as basis for theft

conviction, failure to give unanimity instruction is reversible error].) We reverse the

conviction on count 1.

       B. The Mistake of Fact or Law Claim

       Mendiburu argues the court sua sponte should have instructed the jury on mistake

of fact because there was substantial evidence to support the defense and it was not

inconsistent with his theory of the case. He asserts that because Exhibit 24A

recharacterized monies he had misappropriated prior to September 2009 as a "loan," and

included a promissory note committing Mendiburu to repay the estate for those funds,

there was evidence he mistakenly but in good faith believed he could take additional

estate assets that would merely be added to the principal amount of the loan, and

therefore the specific intent to deprive the estate of the assets was absent. However, the

court in People v. Lawson (2013) 215 Cal.App.4th 108 (Lawson) applied our Supreme

Court's analogous decision in People v. Anderson (2011) 51 Cal.4th 989, which held a

trial court has no sua sponte obligation to instruct on "accident" as negating the specific

intent element of an offense, to conclude a court likewise has no sua sponte obligation to

instruct on "mistake of fact" as negating a specific intent to steal. The Lawson court

                                             30
observed that "as explained in Anderson, the trial court's sua sponte instructional duties

do not apply to defenses that serve only to negate the mental state element of the charged

offense when the jury is properly instructed on the mental state element, even when

substantial evidence supports the defense and it is consistent with the defendant's theory

of the case. [Citation.] In these circumstances, the court's duty to [instruct] 'extend[s] no

further than to provide an appropriate pinpoint instruction upon request by the defense.' "

(Lawson, supra, 215 Cal.App.4th at p. 119, italics added.) We agree with Lawson's

application of Anderson and conclude that a "mistake of fact" instruction, although

potentially available when there is evidence to support it and the defense requests it, is

not sua sponte required when the jury has already received proper instructions on the

mental state element required for the offense.

       Mendiburu argues the court sua sponte should have also (or perhaps alternatively)

instructed the jury on "mistake of law" based on the same factual basis in the record. It is

oft stated that mistakes as to the law are " 'almost never a defense.' [Citation.] There are

rare instances where ignorance that a penal law prohibits one's conduct does provide a

defense. Those instances include crimes punishing the failure to act (rather than an

affirmative act) and certain conspiracies." (People v. Meneses (2008) 165 Cal.App.4th

1648, 1663.) Mendiburu cites nothing to suggest a "mistake of law" defense is even

available to any of the charged offenses, much less that mistake of law is a "general

principle[] of law that [is] commonly or closely and openly connected to the facts before

the court and that [is] necessary for the jury's understanding of the case" that it gave rise

here to a sua sponte instructional obligation. (People v. Montoya (1994) 7 Cal.4th 1027,

                                              31
1047.) Of course, to the extent Mendiburu's argument for a "mistake of law" instruction

is merely a relabeling of his "mistake of fact" claim (see Meneses, at p. 1662 [the

"distinction between mistakes of fact and mistakes of law is an 'often difficult

distinction' "]), we reject his argument for the reasons outlined in Lawson, supra, 215

Cal.App.4th 108.

                                             VI

                           THE SUBSTITUTE JUDGE CLAIMS

         Mendiburu argues he was entitled to have the same judge who presided at trial

(Judge White) also rule on his new trial motion, and because the substituted judge who

actually ruled on his new trial motion did not have the familiarity with the witnesses

necessary to conduct an independent reweighing of the evidence, the order denying his

new trial motion was error. Mendiburu also argues he was entitled to have Judge White

determine his sentence, and the matter requires remand for resentencing before Judge

White.

         A. Background

         The jury returned its guilty verdicts on August 15, 2013, and Judge White

scheduled sentencing for October 22, 2013. Due to circumstances beyond Mendiburu's

control, on September 6, 2013, the court was required to relieve Mendiburu's trial

attorney as his defense counsel. The court, cognizant of the pending sentencing date and

the need to hear any new trial motions before sentencing, set a hearing for the next court

day (September 9, 2013) to appoint new counsel. At the next hearing, Mendiburu

expressed a wish to hire private counsel, and new counsel appeared for Mendiburu at a

                                             32
September 18, 2013, hearing at which Mendiburu asked to continue the sentencing

hearing until December 2013 to provide new counsel adequate time to prepare a new trial

motion. At the subsequent status conference on October 2, 2013, at which time new

counsel for the People also appeared, the court granted Mendiburu a continuance of

sentencing until January 24, 2014, and indicated that, although the court would request

that Judge White be assigned to preside over that hearing, his availability was subject to

the discretion of the California Judicial Council.

       At the January 24, 2014, hearing, the court heard Mendiburu's motion, filed in

mid-December 2013, seeking to continue the sentencing hearing on the grounds defense

counsel had been unable to timely obtain reporter's transcripts of the trial. The People,

although not opposing a continuance, asked to set sentencing as soon as feasible because

Mendiburu remained at liberty during this period of delay. The court informed the

parties that Judge White, a retired judge who resided in Palm Desert, California, but sat

by assignment on Mendiburu's trial, was "fully booked" until May 2014 and, moreover, it

was not economically feasible for him to return to Inyo County for a single matter. The

court found that, despite good faith efforts to secure him to preside over the posttrial

motions and sentencing, Judge White was unavailable in the near term and was reluctant

to serve on this single matter. Accordingly, the court as presiding judge ruled it would

exercise its power under Government Code section 69508 to assign itself to preside over

all further matters.




                                             33
       B. Legal Framework

       The statutory scheme provides that, "If after the commencement of the trial of a

criminal action or proceeding in any court the judge or justice presiding at the trial shall

die, become ill, or for any other reason be unable to proceed with the trial, any other

judge or justice of the court in which the trial is proceeding may proceed with and finish

the trial . . . . The judge or justice authorized by this section to proceed with and

complete the trial shall have the same power, authority, and jurisdiction as if the trial had

been commenced before that judge or justice " (§ 1053, italics added.) Although it is

preferable for the judge who presided at the trial to hear the motion for a new trial

(People v. Norton (1956) 141 Cal.App.2d 790, 792), as well as to preside at the

sentencing hearing (People v. Jacobs (2007) 156 Cal.App.4th 728, 738), there is no

constitutional right (People v. Moreda (2004) 118 Cal.App.4th 507, 512-518 (Moreda))

or statutory right (People v. Norton, supra) to have the same judge preside over those

phases of the trial. Instead, there is no error when the trial judge is unavailable and a

different judge acts on the new trial motion (ibid.) or imposes sentence on the defendant

after a trial. (People v. Downer (1962) 57 Cal.2d 800, 816; People v. Cole (1960) 177

Cal.App.2d 458, 460.) We also note that Judge White, who presided at trial, is a retired

judge who does not reside in the County in which the trial took place, and he declined the

invitation to return to the trial location to entertain the new trial motion and conduct the

sentencing hearing. Under these circumstances the superior court has no authority to

require Judge White to conduct further proceedings in this case.



                                              34
       C. Analysis

       The New Trial Motion Claim

       Mendiburu argues it was error to have the new trial motion ruled on by anyone

other than Judge White because, quoting from Moreda, supra, 118 Cal.App.4th at page

514, "[c]ertainly, a judge's first-hand observations of the demeanor of a witness could be

useful when ruling on a motion for new trial." Essentially, Mendiburu argues a

substituted judge is incapable of conducting the assessment of the evidence required

when considering a new trial motion. Mendiburu's argument ignores that, immediately

following that quoted passage, the Moreda court then said at pages 514 to 515:

          "However, since the court functions in a supervisory capacity and its
          review must be limited to what the evidence shows, we believe that,
          at least in most cases, a court can effectively rule on a motion for
          new trial by reviewing the transcripts of the proceedings and thereby
          determining whether the jury's verdict, and the weight of evidence
          and credibility determinations upon which that verdict rests, are
          supported by the evidence. Thus, we disagree that section 1181
          implicitly confers on criminal defendants the right to demand or
          expect that the judge who presided at trial also rule on his or her
          post-trial challenge to the sufficiency of the evidence."

       Here, the presiding judge, after exercising his power under Government Code

section 69508 to assign himself to hear Mendiburu's new trial motion and sentencing,

explicitly scheduled the hearing almost 60 days later "not only for the defense to prepare

a significant motion" but also because the court recognized it would "need an opportunity

to review the—at least the relevant portions of the trial transcript for purposes of both

informing me with respect to the merits of any motion for a new trial and for sentencing."

Thus, the court recognized that its role under Moreda contemplated a complete


                                             35
familiarization with the record to make the appropriate determinations in connection with

Mendiburu's new trial motion, and Mendiburu does not provide any basis for assuming

the court did not fully comply with its obligations in connection with, or applied

inappropriate standards when ruling on, the new trial motion. We agree with Moreda's

assessment that the analogous decision by our Supreme Court in People v. Espinoza

(1992) 3 Cal.4th 806 is fatal to Mendiburu's claim that he was deprived of a full

consideration of his new trial motion by the change of judges. As Moreda observed:

          "Espinoza was a murder case in which the court affirmed a death
          judgment. The court held, among other things, that the defendant's
          rights were not violated by the fact that a motion to modify the death
          verdict was adjudicated by a judge who did not hear the entire guilt
          phase trial. [Citation.] The judge who presided when the guilt phase
          commenced became too ill to continue and a different judge was
          appointed pursuant to section 1053. The defendant objected to the
          midtrial substitution on several grounds including that the second
          judge could not properly rule on the motion to modify the jury's
          death verdict. [Citation.] The defendant expressly argued that,
          because the second judge did not personally hear the testimony of a
          crucial material witness, he could not possibly evaluate the witness's
          credibility and thus 'could not fully exercise his independent
          judgment of the evidence' for purposes of ruling on the motion.
          [Citation.] The Espinoza court disagreed. It acknowledged that,
          when ruling on a motion to modify a death judgment, the trial court
          conducts an independent review of the evidence; the judge must
          ' "assess the credibility of the witnesses, determine the probative
          force of the testimony, and weigh the evidence." ' Notwithstanding
          this procedure, the Espinoza court rejected the defendant's
          contention that 'the requisite assessment can be made only by a
          judge who has personally heard the testimony presented at the guilt
          phase of the trial.' [(Quoting Espinoza, supra, at p. 830.)] The
          Espinoza court reasoned that the trial court was not to make an
          'independent and de novo penalty determination.' Rather, the trial
          court was required to make an independent judgment as to whether
          the weight of the evidence supports the jury verdict. The court
          rejected the contention that the second judge could not fully exercise
          that independent judgment by reviewing the transcripts of the trial

                                            36
          proceedings that took place before his substitution. [Citation.] [¶]
          The postverdict review conducted by the trial court in Espinoza is
          comparable to the review that a trial court performs when ruling on a
          motion for new trial challenging the sufficiency of the evidence. In
          both contexts, the court undertakes an independent analysis, weighs
          the evidence, and makes credibility determinations, but does not
          substitute its own judgment for that of the jury. Thus, the Supreme
          Court's holding in Espinoza applies in this context. It confirms our
          conclusion that a judge who did not personally hear testimony at trial
          may nevertheless make an adequate independent assessment of the
          evidence in the record in order to determine whether the weight of
          the evidence supports the jury's verdict." (Moreda, supra, 118
          Cal.App.4th at pp. 517-518.)

       We likewise conclude a judge who did not personally hear the trial testimony may

nevertheless make an adequate independent assessment of the evidence in the record to

determine, in connection with a new trial motion, whether the weight of the evidence

supports the jury's verdict. Mendiburu's argument of error in connection with the ruling

on his motion for new trial is without merit.

       The Sentencing Claim

       We likewise conclude Mendiburu's argument of error in connection with his

sentencing hearing is without merit. Mendiburu, citing Jacobs, supra, 156 Cal.App.4th

728 and People v. Strunk (1995) 31 Cal.App.4th 265, quotes Strunk as holding that

"[a]bsent . . . good cause shown, a defendant should be able to have the trial judge who

was familiar with the evidence at trial impose sentence." (Strunk, at pp. 275-276, fn. 13.)

However, the predicate to the general preference for the same judge to preside at the

sentencing hearing is whether there was "good cause shown" for a different judge to be

substituted, and the court below found "good cause" to replace Judge White with the new

judge. Mendiburu argues this determination was an abuse of discretion because there

                                            37
was some indication Judge White might become available if sentencing was continued

another four to five months, and Mendiburu was willing to travel to Palm Desert (Judge

White's city of residence) to accommodate sentencing at that later date. However, the

court, after noting (1) the offenses had occurred in 2009, (2) the jury had returned its

verdict in August 2013, and (3) there had already been "more than [the] usual delay

between the time of trial and sentencing," concluded that "further extraordinary delay

would not be in the interest of justice." We conclude, considering the fact that

Mendiburu (despite having been convicted five months earlier) remained at liberty and

sought to remain so for at least another four to five months, the court's ruling that a

further (and lengthy) delay would not be "in the interests of justice" was not an abuse of

discretion, and therefore we hold the presiding judge's conclusion there was good cause

shown to substitute a different judge was not an abuse of discretion.12

                                             VII

                               THE RESTITUTION CLAIM

       Mendiburu asserts he was entitled to know the amount he would be required to

pay as "victim restitution" sometime before the court imposed sentence, and therefore the



12      For this reason, Mendiburu's reliance on Jacobs, supra, 156 Cal.App.4th 728 is
inapposite. The Jacobs court, after recognizing that granting a continuance to allow for
the trial judge to preside at sentencing will only be reversed for an abuse of discretion (id.
at pp. 735-736), concluded it was an abuse of discretion to deny a request for a
continuance to accommodate "the recognized preferred procedure that defendant be
sentenced by the trial judge [because] the trial judge was available on the following
Monday, necessitating a continuance of all of two days." (Id. at p. 740.) The length of
the delay alone distinguishes Jacobs from the instant case.

                                             38
court improperly sentenced him prior to any hearing determining the amount of the

victim restitution order. Specifically, he argues that, because one of the enumerated

circumstances in mitigation that must be considered in selecting the sentence is whether

"[t]he defendant made restitution to the victim" (Cal. Rules of Court, rule 4.423(b)(5)),13

a defendant must be informed (at some undefined time before the court imposes

sentence) of the amount he is going to be required to pay to provide him with the

opportunity to pay such amount and thereby take advantage of that circumstance in

mitigation.

       Section 1202.4, subdivision (f), provides that a court "shall require that the

defendant make restitution to the victim or victims in an amount established by court

order, based on the amount of loss claimed by the victim or victims or any other showing

to the court. If the amount of loss cannot be ascertained at the time of sentencing, the

restitution order shall include a provision that the amount shall be determined at the

direction of the court. . . ." The statutory scheme also provides that "when the economic

losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision

(f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a

restitution order for purposes of imposing or modifying restitution until such time as the

losses may be determined." (§ 1202.46.) As the court stated in People v. Bufford (2007)

146 Cal.App.4th 966, 971, "[u]nder a reading of the plain language of section 1202.4, if

the court cannot determine the amount of restitution at the time of sentencing, there is no


13     All rule references are to the California Rules of Court.

                                              39
limitation upon when the court must next set a restitution hearing, nor is there a limitation

on the permissible reasons that may prevent fixing the amount of restitution."

       Mendiburu's argument impliedly asserts Buford was wrongly decided, and the

statutory scheme governing restitution orders under section 1202.4 cannot be read

according to the literal words of the statute, because delaying a restitution hearing to a

date after sentencing is irreconcilable with the defendant's right to present the mitigating

evidence contemplated by rule 4.423(b)(5) that he paid restitution to the victim.

However, when construing a statute, our task is "to determine and give effect to the

Legislature's intent. [Citations.] ' "In determining such intent, a court must look first to

the words of the statute themselves, giving to the language its usual, ordinary import and

according significance, if possible, to every word, phrase and sentence in pursuance of

the legislative purpose. . . ." ' [Citation.] 'The words must be construed in context in

light of the nature and obvious purpose of the statute where they appear.' [Citation.] The

statute 'must be given a reasonable and commonsense interpretation consistent with the

apparent purpose and intention of the Legislature, practical rather than technical in

nature, and which, when applied, will result in wise policy rather than mischief or

absurdity.' [Citation.] [¶] Potentially conflicting statutes must be harmonized whenever

possible." (Barker v. Brown & Williamson Tobacco Corp. (2001) 88 Cal.App.4th 42,

46.)

       Mendiburu's reading of the interplay between the sentencing factor under rule

4.423(b)(5) and the restitution statute is inconsistent with the apparent intent that the

restitution order contemplated by section 1202.4, subdivision (f), be imposed at the time

                                              40
of sentencing. The statutory scheme, which authorizes imposition of the victim

restitution, includes the proviso that the court may defer entering that order if "the

amount of loss cannot be ascertained at the time of sentencing" (ibid.), and also provides

that if such losses cannot be determined "at the time of sentencing pursuant to subdivision

(f) of Section 1202.4" the court shall retain jurisdiction to enter a later order.

(§ 1202.46.) These provisions impliedly contemplate entry of the restitution order as

part of the sentencing hearing. Mendiburu's argument, however, is that the order must be

entered well in advance of sentencing to provide time for the defendant to marshal his

resources and pay that amount so that he can then be positioned to argue (at the later

sentencing hearing) that he satisfied rule 4.423(b)(5).

       We disagree that rule 4.423(b)(5), impliedly requires the victim restitution hearing

to be held well in advance of the sentencing hearing, and we instead harmonize the

interplay between rule 4.423(b)(5), and section 1202.4, subdivision (f), by interpreting

the former as permitting a defendant to argue in mitigation that he "made restitution to

the victim" voluntarily rather than under the compulsion of any court-ordered restitution.

Under our construction, the phrase "made restitution to the victim" as used in rule

4.423(b)(5) is not referring to conduct by a defendant acting under compulsion of a court

order entered under section 1202.4, subdivision (f), but is instead referring to voluntary

conduct (much like the factor in mitigation contained in rule 4.423(b)(3) ["defendant

voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal

process"]) by the defendant. This construction thus preserves the right of a defendant

who makes restitution before sentencing to cite that fact in mitigation at sentencing (see

                                              41
People v. Hughes (1980) 112 Cal.App.3d 452) without undermining the apparent intent

of the statute that victim restitution orders be entered at, or when necessary after,

sentencing.

                                       DISPOSITION

       The judgment of conviction on count 1 is reversed, and in all other respects the

judgment of conviction is affirmed. The matter is remanded for resentencing on the

remaining convictions.




                                                                             McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


AARON, J.




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