Filed 6/18/15 P. v. Bradder Ca2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR



THE PEOPLE,                                                             B254835

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. BA380684)
         v.

ROSS ALAN BRADDER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Bob S.
Bowers, Judge. Reversed.
         Stanley Dale Radtke, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Jason Tran and Jonathan J. Kline,
Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION
       Defendant Ross Alan Bradder was convicted by jury of one count of
embezzlement and acquitted on six counts of forgery. The jury rejected the special
allegations seeking sentencing enhancements for taking property worth more than
$200,000 or, alternatively, $65,000. On appeal from his embezzlement conviction,
defendant contends the trial court erred in failing to give two jury instructions sua sponte:
a unanimity instruction regarding the multiple acts which allegedly constituted
embezzlement and an instruction regarding the statute of limitations. We find the failure
to give a unanimity instruction under the circumstances of this case was prejudicial error.
We therefore reverse the judgment.
                     FACTUAL AND PROCEDURAL HISTORY
I. Procedural Background
       Defendant was charged by information with one count of embezzlement (Pen.
Code, §504 (count 1))1 and six counts of forgery (§470, subd. (a) (counts 2 through 7)).
The information further specially alleged as to count one that defendant took property
with a value exceeding $200,000 (§12022.6, subd. (a)(2)) or, alternatively, $100,000
(1203.045, subd. (a)).2
       After a six day trial, the jury found defendant guilty of embezzlement on count
one. The jury found defendant not guilty on all six forgery counts and found both of the
special allegations on count one not true. On March 7, 2014, the court sentenced
defendant to 364 days in prison, with the execution of that sentence suspended, and
placed defendant on three years formal probation. The court further assessed various
fines, including $43,000 in restitution to the victim. (§1202.4, sub. (f).) Defendant


1
       All further statutory references are to the Penal Code unless otherwise indicated.
2
       The information alleged the lesser enhancement was “a theft of over $100,000,
within the meaning of Penal Code section 1203.045(a).” Ultimately, as reflected in the
jury instructions and verdict form, the amount of the lesser enhancement was alleged to
be $65,000 pursuant to section 12022.6, subdivision (a)(1).
                                            2
timely appealed.
II. Prosecution Case
       A. Creation of Los Angeles Community Builders, Inc.
       The Church on the Way (the Church) is a large church located in Van Nuys,
California. During at least the last decade, the Church held seven to eight services each
week “in a variety of languages,” generated an income of about 16 million a year, and
owned a radio station, university, and “a number of other organizations.” In 2002, the
Church began an outreach organization called Los Angeles Community Builders, Inc.
(LACBI). LACBI’s mission was to help the surrounding community by providing
counseling and tutoring to students, revitalizing rundown houses and other facilities,
providing food for community members in need, and organizing other community
activities. The Church had engaged in some of these activities in the past, but created
LACBI as a separate, nonprofit organization that received its support through donations.
       Defendant “was the impetus behind” the creation of LACBI and was therefore
installed as its founding president. James Tolle, who served as the Church’s senior pastor
for much of the period at issue, became the founding Chairman of LACBI’s board of
directors; other Church members made up the remainder of the board. Defendant was
LACBI’s “sole employee” but his salary was paid by the Church. Defendant ran the day
to day operation of LACBI, including raising funds and organizing events. Defendant
was given “a fair degree of independence in the sense that he was to manage the daily
details” of LACBI, but he worked under the oversight of the LACBI board and was
required to provide financial reports. Defendant “was to report to [Tolle] as the
Chairman and to the Vice Chairman and to the Treasurer,” Louis Eksteen.3
       LACBI was formally incorporated in March 2002. LACBI’s bylaws and articles
of incorporation required that all checks issued by LACBI contain two signatures.
LACBI operated using its own Bank of America bank account. Defendant was also


3
       Eksteen was also the Church’s Chief Financial Officer.
                                             3
issued a LACBI credit card. In the “rare” instance that defendant would need to use his
own funds for a LACBI expense, the Church had a form he could fill out to be
reimbursed. But the Church “frowned on” the use of personal finances for Church or
LACBI operations. The Church also had a “petty cash system” that required
documentation. As such, according to Tolle, it would be “highly unusual” for defendant
to need to write checks to cash for LACBI operations; the Church “didn’t operate that
way” because “you can’t track any of the monies being used.”
       B. The Church Investigation
       From its inception in 2002 until early 2008, defendant was responsible for
LACBI’s financial accounting, which was handled independently from the Church. In
early 2008, the Church decided to integrate LACBI’s finances into the Church’s finance
department. As part of that process, Jeff Nelson, the Church’s finance director, took
control over LACBI’s Bank of America bank account, the only LACBI account of which
he was then aware. Nelson also requested that defendant provide him with bank account
statements and any other documents related to LACBI’s expenses, so that he “could do,
in a sense, an in-house audit” as part of the transition. Defendant was resistant to
Nelson’s “multiple requests” for the financial documents. He eventually supplied
incomplete records, and for certain months failed to provide the bank statement and
copies of cancelled checks.
       Sometime in early 2009, Nelson was trying to finalize payments to vendors for a
LACBI event sponsored by an outside group, the Four Square Foundation. When he
realized there were insufficient funds in LACBI’s account, he contacted the Four Square
Foundation about the status of a “significant” grant it had promised to LACBI for the
event. Nelson was told the check had been deposited into an account at Mission Valley
Bank. Until that point, Nelson was not aware of any LACBI account at Mission Valley
Bank. Nelson then informed his superiors of the existence of the account.
       When Tolle learned of the Mission Valley Bank account, he was concerned for the
Church’s reputation and the tax implications of any financial mismanagement of LACBI.

                                             4
Tolle asked Eksteen, John Farmer (the Church’s executive director), and Vip Bhola (the
Church’s general counsel) to “find out what was going on.”
       In March 2009, Eksteen, Farmer, and Bhola met with defendant. Defendant stated
that he had placed the Four Square Foundation grant into the Mission Valley Bank
account “for convenience” after “some type of delay” with the grant, and that he had
planned to transfer the funds to the Church “later on.” Defendant also claimed that the
board had approved the opening of the Mission Valley Bank account and that he had
opened it “for ease of funds, to better distribute if he needed quick cash” for LACBI
activities. Farmer testified that defendant acknowledged that he “shouldn’t have opened
this account without letting [Farmer] know or working through the board” and promised
to bring in all of the bank statements for that account the next day.
       Bhola subsequently obtained directly from Mission Valley Bank copies of the
documents defendant had used to open the account. When confronted with these
documents, defendant admitted he had forged the signatures of Tolle and another LACBI
board member on the documents without authorization.
       Bhola testified that as they tried to verify what defendant had said during their
meetings, they discovered that “some things were not true;” further, defendant’s story
would change from meeting to meeting. As a result, they decided to create written
statements based on the meetings, “so that maybe the solemnity of having to put
something in writing and sign it would cause him to tell us the truth.” Bhola created a
template for a declaration under penalty of perjury. According to Bhola, as defendant
spoke at a meeting, Eksteen would type what he said. Defendant was then given the
opportunity to review and amend or correct the declaration at the meeting, and he would
then sign the document.
       Over the course of several months in 2009, defendant met multiple times with
Eksteen, Farmer, and Bhola and signed about 14 declarations. Bhola testified about
additional information discovered by the Church during its investigation, discussed with
defendant during the meetings, and memorialized in his declarations, including: (1)

                                              5
Defendant admitted he forged Tolle’s signature on a number of checks from LACBI’s
Bank of America account. Tolle also identified several checks that bore his signature but
that he did not sign. (2) Defendant deposited $7,000 into the Mission Valley account,
noting on the deposit slip that the funds came from his wife’s mother. Defendant
admitted this was untrue, that the funds actually came from another grant, and that he had
never disclosed the existence of the grant to the Church. (3) Defendant deposited
$30,000 into the Mission Valley account and represented that the money came from “Mr.
Bullion,” a previous employer who owed him money. Defendant admitted the money
was actually a grant from the Buckman Charitable Foundation. (4) Defendant admitted
that he opened a second Bank of America account without knowledge or approval of the
LACBI board. He deposited donor funds into that account. Defendant stated that he
opened the account because the Church was “implementing increasing control” over
LACBI’s original bank account and defendant wanted to “circumvent those controls.”
He closed the second account when the Church began banking online, because he feared
the Church would discover the existence of the second account. He then opened the
Mission Valley account. (5) Defendant admitted that he signed a $500 check each month
from a LACBI account payable to cash and that the amount was “over and above
legitimate reimbursements” due to him. He also mislabeled multiple petty cash
disbursements of about $150 each as ministry expenses when they were actually for
personal use. (6) Defendant set up an automatic debit from the original LACBI Bank of
America account for his personal gym membership, labeling the withdrawal as “dues.”
(7) Defendant prepared checks that appeared to be tithes or donations to other
organizations, obtained approval from the Church for the donations, and then redirected
the funds for his own benefit, including a $1,000 check intended for San Fernando Valley
Rescue Mission on August 10, 2008. (8) Using funds from the Mission Valley account,
defendant, among other things: purchased a Honda minivan for his family for $24,000;
paid off a credit loan for a personal vehicle in the amount of $6,754.89; paid for a trip for
his family to Hawaii in the amount of approximately $4,700; and paid a personal trainer

                                              6
$1,119. None of these expenses was authorized by the Church.4 (9) Defendant told
Bhola that a sponsor had dropped out and he needed to raise $7,500 for the annual
Thanksgiving dinner for the homeless. Bhola secured the funds for the dinner himself.
Defendant later admitted that the sponsor had not dropped out, he did not need the money
for the dinner, and he had put the entire amount into the Mission Valley account.
      C. Sheriff’s Department Investigation
      In late 2009, the Church made a formal complaint regarding defendant to the Los
Angeles County Sheriff’s Department (LASD). In December 2009, LASD Detective
David Lingscheidt was assigned to investigate. Detective Lingscheidt executed a search
warrant on defendant’s residence on January 7, 2010. In a car parked in defendant’s
driveway, the detective found a handwritten letter addressed to “Pastor Jim” (Tolle). The
letter stated “Pastor Jim, I stole money and used it for my own purposes.”
      Detective Lingscheidt also executed search warrants for the LACBI records at
Bank of America and Mission Valley Bank and conducted an analysis of those records.
He testified that defendant wrote $188,529.15 in checks to “cash” from the original
LACBI Bank of America account between March 10, 2003 and September 26, 2007,
$16,375 in checks to “cash” from the second Bank of America account between October
11, 2007 and February 19, 2008, and $162,250 in checks to “cash” from the Mission
Valley Bank account between February 22, 2008 and June 5, 2009.5 He asked defendant
for documentation confirming defendant’s statement that “the vast majority of these cash
disbursements” were for LACBI expenses. Defendant provided a 14-page report
“summarizing the disbursements that he felt were related to the ministry” but did not
provide any receipts or other documentation. Detective Lingscheidt testified that he had




4
       Defendant confirmed that he made these purchases without authorization using
funds from the Mission Valley account during his testimony at trial.
5
      The date ranges for the second and third accounts reflect the entire period those
accounts were open.
                                           7
no other way to tell which of these disbursements was for a legitimate LACBI expense
versus for defendant’s personal use.
       D. Interviews with Defendant
       Detective Lingscheidt interviewed defendant on January 7, 2010 during the search
of defendant’s residence. During the interview, defendant acknowledged LACBI’s two-
signature check policy. He stated that while he initially followed the policy, he ceased
doing so in 2003, after the death of the senior pastor (Scott Bauer) caused “a considerable
amount” of “upheaval in the Church” and made it difficult for him to obtain the second
signature. Defendant began writing single-signature checks to petty cash for small
vendors who were due small amounts of money. Defendant stated he was “acting as a
lone ranger at the ministry” as a result of the “upheaval and the change in pastors.”
       Defendant also told Detective Lingscheidt that in 2007, he opened the second
LACBI bank account at Bank of America. He stated he intended to use the account for
special projects, such as fundraisers, and did not want to use the original LACBI bank
account because he was “frustrated with the people and the Church.” The second account
was opened without authorization from LACBI’s board. Defendant later opened an
additional bank account at Mission Valley Bank, again without authorization. Defendant
admitted to forging documents and Church officials’ signatures in order to create that
account.
       Defendant stated he initially deposited $175,000 from LACBI grants and
donations into the Mission Valley account. He later transferred about $150,000 of that
money to the original Bank of America account so that the Mission Valley account would
not be discovered by the Church. According to Detective Lingscheidt, defendant stated
he wanted to keep the Mission Valley account secret because “he was using some of the
money for his own personal use.” Defendant admitted that his actions were “unethical,
illegal and wrong in every way.” He estimated he had used about $25,000 in LACBI
funds for his personal use. Defendant claimed that he sold the Honda minivan and gave



                                             8
the cash back to the Church as an attempt at restitution, and also “turned in his 401(k)
account.”
       Defendant met with Detective Lingscheidt again on June 14, 2010 to discuss the
analysis of the bank records. Defendant stated that some of the Mission Valley
disbursements were valid ministry expenses, but admitted that between $70,000 and
$80,000 of the funds were for his personal use.
III. Defense
       Defendant testified on his own behalf. He stated that he had a “vision” in 2001 to
develop LACBI and then met with a pastor at the Church who assisted the defendant in
establishing LACBI. He claimed that he paid for some Church and LACBI expenses
with his own funds and was never reimbursed. He testified that he made checks out to
“cash” when he paid multiple vendors for an event, as he never had another authorized
signer with him at the time. That was his “common standard practice” “virtually” from
2003 when LACBI started doing events. He did not keep track of what payments he
made in this fashion, stating that “managing money is not my thing.” He did not fill out
expense reports because LACBI did not have an expense policy. He would “on a weekly
basis” take board members, donors, and staff members out to lunch and would pay for
that expense with his personal credit card. Defendant stated he did not receive a LACBI
credit card until “probably closer to 2007.”
       Defendant also claimed he used the minivan to transport “people and things” to
LACBI events. He thought it was a “necessary expense for the need that existed,” since
he and his family were driving “all over Southern California” for LACBI-related events.
He opened the second Bank of America account and the Mission Valley account because
he was unhappy that “there was a mission for the ministry that was being circumvented
and being not fulfilled because of the control that was being placed on it by the Church.”
When questioned about the trip for his family to Hawaii, defendant responded that “it
would be something that would not necessarily be beyond the scope of a bonus
compensation.” Defendant claimed he did not steal any money from LACBI.

                                               9
       Defendant testified the declarations he signed during the 2009 meetings with
Church officials were not accurate, but he signed them because church officials also
stated it was mandatory for him to sign the declarations as a condition of “restoration” to
both the Church and his position at LACBI, and he did not pay “attention to the detail of
words that were necessarily used” in the declarations. He was also “directed” to write the
letter to Tolle. In addition, defendant testified that he signed a power of attorney giving
the Church control over all of his assets.
       On cross-examination, defendant admitting signing Tolle’s name on checks and
signing LACBI board members’ names on the documents setting up the Mission Valley
account, all without the knowledge or permission of the board. He testified that during
the church’s investigation, he provided deposit slips that misidentified the source of the
deposited funds.
                                      DISCUSSION
       Defendant contends the trial court’s failure to give a unanimity instruction on the
embezzlement count constituted prejudicial error. We agree.
       A. Legal Principles
       We review an assertion of instructional error de novo. (See People v. Shaw (2002)
97 Cal.App.4th 833, 838.) Whether the trial court should have given a “particular
instruction in any particular case entails the resolution of a mixed question of law and
fact,” which is “predominantly legal.” (People v. Waidla (2000) 22 Cal.4th 690, 733.)
As such, it should be examined without deference. (Ibid.)
       In a criminal case, a jury verdict must be unanimous. (People v. Collins (1976) 17
Cal.3d 687, 693; Cal. Const., art. I, § 16.) This means that each individual juror must
agree the defendant committed a specific offense. (People v. Russo (2001) 25 Cal.4th
1124, 1132 (Russo).) Therefore, when the evidence suggests more than one discrete
crime, either the prosecution must elect among the crimes, or the trial court must instruct
the jury sua sponte that it is required to unanimously agree on the same criminal act.
(People v. Riel (2000) 22 Cal.4th 1153, 1199.)

                                             10
        A unanimity instruction “‘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.’” (Russo, supra, 25 Cal.4th at p. 1132, quoting People v.
Sutherland (1993) 17 Cal.App.4th 602, 612.) Similarly, the instruction is “‘designed in
part to prevent the jury from amalgamating evidence of multiple offenses, no one of
which has been proved beyond a reasonable doubt, in order to conclude beyond a
reasonable doubt that a defendant must have done something sufficient to convict on one
count.’” (Russo, supra, 25 Cal.4th at p. 1132.)
        B. The Trial Court’s Failure to Give a Unanimity Instruction Sua Sponte Was
Error
        Defendant contends that the prosecution argued he committed several discrete
acts, any one of which the jury could have relied upon to convict him of embezzlement.
Because the prosecutor did not elect to proceed on one specific act, defendant contends
the trial court had a sua sponte duty to give a unanimity instruction. The Attorney
General counters that the continuous course of conduct exception applies to the facts
here. We conclude that this case does not fall within the exception and therefore the trial
court should have given a unanimity instruction.
        A “narrow” exception to the rule requiring a unanimity instruction has developed
over the years. (People v. Gunn (1987) 197 Cal.App.3d 408, 412 (Gunn); People v.
Madden (1981) 116 Cal.App.3d 212, 218 [exception “quite limited”].) The “continuous
course of conduct exception” is actually a “conglomerate” category comprised of several
different types of situations. (People v. Diedrich (1982) 31 Cal.3d 263, 282.) As
potentially applicable here, the first situation arises where the statute defining the crime
“‘contemplates a continuous course of conduct of a series of acts over a period of time.
[Citation.]’” (People v. Gunn, supra, 197 Cal.App.3d at p. 412, quoting People v.
Thompson (1984) 160 Cal.App.3d 220, 224.) This exception is “applied to varying
crimes that cover ‘repetitive or continuous conduct’ such as child abuse; misdemeanor
child annoyance or molestation; pimping; pandering; failure to provide for a minor child;

                                             11
contributing to the delinquency of a minor; and dissuading a witness from testifying.”
(People v. Jenkins (1994) 29 Cal.App.4th 287, 299-300 [citations omitted] [applying
exception to torture]; see also People v. Thompson, supra, 160 Cal.App.3d at p. 223
[applying exception to spousal battering because, “[l]ike child abuse, this is a case where
each individual act may not amount to a crime, but the cumulative outcome is
criminal.”].)
        The Attorney General suggests that embezzlement falls within this category, as its
“statutory scheme . . . evinces a legislative intent to punish a course of conduct rather
than discrete events.” But it cites no cases applying this exception to embezzlement, or
to any other form of theft. Moreover, it acknowledges that the statute defining
embezzlement6 does not bear the standard indicia of an intent to punish a course of
conduct—specifically, the statute does not “focus[] on a goal or effect of an offense,
rather than the means,” and the gravamen of the offense does not lie “in its cumulative
effect,” as is true of the offenses above. (People v. Sanchez (2001) 94 Cal.App.4th 622,
632.)
        Instead, the cases considering the necessity of a unanimity instruction for
embezzlement and similar offenses have looked to whether the facts of that particular
case fall within a second subset of the continuing course of conduct exception, “when the
acts are so closely connected that they form part of one and the same transaction, and
thus one offense. [Citation.]” (Gunn, supra, 197 Cal.App.3d at p. 412.) In applying this
exception, courts often assess whether defendant engaged in a course of conduct “with a
single fraudulent intent.” (People v. Daniel (1983) 145 Cal.App.3d 168, 175 (Daniel) [no
instruction required where defendant “engaged in a continuous course of conduct of theft
from a single victim over a period of five months with a single fraudulent intent or
objective”]; People v. Howes (1950) 99 Cal.App.2d 808, 821 [no instruction required
where defendant convicted of grand theft as his “various acts . . . were all motivated,


6
      Embezzlement is defined as the “fraudulent appropriation of property by a person
to whom it has been [en]trusted.” (§ 503.)
                                           12
generally, ‘by one design, one purpose, [and] one impulse’ [citation]”].) It is similarly
significant whether defendant has offered “essentially the same defense to each of the
acts, and there is no reasonable basis for the jury to distinguish between them.
[Citation.]” (People v. Thompson (1995) 36 Cal.App.4th 843, 851 (Thompson).) In
Thompson, for example, a building contractor was convicted of diversion of construction
funds through various means, including overbilling the client and applying the excess to
other accounts; accepting money for, then failing to purchase, a requested dumbwaiter;
and taking money for personal use. (Ibid.) In finding that an unanimity instruction was
required, the court of appeal noted that the defendant had raised several different defenses
for his conduct, including that “he did not know the amounts paid to suppliers were
misapplied; he used the dumbwaiter funds for another legitimate use; and he was entitled
to his personal draws” from the client’s funds. (Id. at p. 852.) As such, the “different
defenses raised the problem the unanimity instruction was designed to prevent,” as some
jurors could have believed one defense but rejected another, while other jurors could have
reached the opposite conclusion. (Ibid.) “Absent a unanimity instruction, the jurors
could have unanimously convicted defendant of diversion without agreeing on what he
did.” (Ibid.)
       Similarly, here, the prosecution presented evidence of several different acts, any
one of which could have supported the embezzlement charge against defendant if
believed by the jury, including: (1) defendant’s purchase of a Honda minivan for his
family with LACBI funds; (2) his payment of “bonuses” to himself out of LACBI funds,
such as a family vacation to Hawaii, paying off a car loan, gym membership, et cetera;
(3) his purported admission to Detective Lingscheidt that he took a certain amount of
LACBI money for his own personal use; and (4) writing over $200,000 worth of checks
to “cash” out of the three LACBI accounts, with little to no supporting documentation.
The prosecution alleged that defendant’s conduct occurred “between April 1, 2003 and
June 1, 2009” and argued each of these acts to the jury in support of the embezzlement
charge. At trial, defendant denied committing any theft and offered several defenses: (1)

                                            13
he claimed the minivan was a “necessary” expense because his work with LACBI
involved extensive travel; (2) he classified the trip to Hawaii as “bonus compensation”;
(3) he claimed that some of the admissions made in his declarations were false and were
made at the direction of the Church so that he would be “restored” to his position; and (4)
he stated that he wrote many checks to cash as part of his “standard practice” and then
used those funds for legitimate LACBI expenses, such as paying event vendors. Thus,
the jurors could have found defendant guilty without agreeing on which acts he
committed and which defenses they believed.
       The Attorney General suggests that all of defendant’s “explanations were
essentially based on the same defense that his use of the money was authorized.” While
the defenses raised here were certainly similar, they were not identical, and they provided
the jury with a “rational basis” to distinguish between them. (Thompson, supra, 36
Cal.App.4th at p. 853.) For example, some jurors might have believed defendant’s
testimony regarding his legitimate use of checks written to “cash,” but rejected his claim
that he believed he was owed a vacation as a “bonus,” while others might have reached
the opposite conclusion.
       The jury’s rejection of both sentencing enhancements further supports our
conclusion. This was not a case “where the jury’s verdict implies that it did not believe
the only defense offered.” (People v. Diedrich, supra, 31 Cal.3d at p. 283.) Rather, the
jury found that defendant committed embezzlement only as to the base amount of a
taking over $950, but rejected the allegations that defendant embezzled more than
$65,000, or alternatively, more than $200,000. That result suggests that the jury did not
find beyond a reasonable doubt that defendant committed all of the acts of embezzlement
alleged by the prosecution, nor did they accept or reject all of defendant’s defenses.7


7
       By contrast, the Attorney General cites several cases where the jury’s finding
regarding the dollar amount of the theft actually supports application of the continuing
course of conduct exception in those cases. For example, in Daniel, the jury found that
defendant stole property in excess of $25,000. (Daniel, supra, 145 Cal.App.3d at p. 175.)
Because each of the individual acts alleged was under $25,000, the “jury must have
                                             14
Because they may not have unanimously agreed which act or acts defendant committed,
the unanimity instruction should have been given.
       C. The Error Was Prejudicial
       There is a split of opinion in the appellate courts as to the proper standard to apply
when reviewing a claim of prejudicial error in a unanimity instruction case. (See People
v. Hernandez (2013) 217 Cal.App.4th 559, 576 (Hernandez) [discussing split].) The
majority of the courts that have addressed the issue have applied the harmless error
standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (See, e.g.,
Hernandez, supra, 217 Cal.App.4th at p. 576; People v. Wolfe (2003) 114 Cal.App.4th
177, 187-188 (Wolfe); People v. Smith (2005) 132 Cal.App.4th 1537, 1545; People v.
Deletto (1983) 147 Cal.App.3d 458, 472.) As the court in Wolfe explained, “[w]hen the
trial court erroneously fails to give a unanimity instruction, it allows a conviction even if
all 12 jurors (as required by state law) are not convinced that the defendant is guilty of
any one criminal event (as defined by state law). This lowers the prosecution’s burden of
proof and therefore violates federal constitutional law.” (Wolfe, supra, 114 Cal.App.4th
at pp. 187-188.) Where the error violates federal constitutional rights, the Chapman
standard applies. (Id. at p. 188; but see People v. Vargas (2001) 91 Cal.App.4th 506, 562
[applying standard under People v. Watson (1956) 46 Cal.2d 818, 836, because “the
question of whether defendant was entitled to a unanimity instruction is a state, not a
federal, issue”].)




concluded” that defendant “did indeed engage in a continuous course of conduct.” (Ibid.)
Courts have reached similar results where several acts of petty theft make up a single
charge of grand theft, and the defendant’s conviction for grand theft therefore reflects the
jury’s acceptance of the entire course of conduct exception. (See, e.g., People v. Howes,
supra, 99 Cal.App.2d at p. 820.) Indeed, in Daniel, the court of appeal found that the
unanimity instruction should have been given on a second count of grand theft, where the
jury found the enhancement allegation to be not true and therefore must have agreed that
only one of two alleged takings had been proven. (Daniel, supra, 145 Cal.App.3d at p.
175.)
                                             15
       We agree that the Chapman standard is appropriate here. Under Chapman, the
failure to give a unanimity instruction is harmless “[w]here the record provides no
rational basis, by way of argument or evidence, for the jury to distinguish between the
various acts, and the jury must have believed beyond a reasonable doubt that [the]
defendant committed all acts if he committed any . . .” (Thompson, supra, 36
Cal.App.4th at p. 853; see also People v. Jones (1990) 51 Cal.3d 294, 307 (harmless error
where “the record indicate[s] the jury resolved the basic credibility dispute against the
defendant and therefore would have convicted [him] of any of the various offenses shown
by the evidence”.)
       We cannot say this is such a case. As discussed above, the different defenses
raised here gave the jury a rational basis to distinguish among the various alleged acts of
embezzlement. Moreover, the jury’s rejection of the sentencing enhancements and
acquittal of defendant on the forgery counts preclude a conclusion that the jurors resolved
the credibility contest against defendant and accepted the prosecution’s case in its
entirety. Thus, because we cannot find beyond a reasonable doubt that the jury would
have reached the same result if it had been given a unanimity instruction, the failure to so
instruct was prejudicial.8
       Because we reverse due to this instructional error, we need not address
defendant’s argument regarding the statute of limitations.




8
      For the same reason, the error would be prejudicial under the Watson standard of
review, as the jury’s rejection of some of the prosecution’s case means “it is reasonably
probable that a result more favorable” to defendant would have been reached if the
unanimity instruction had been given.
                                             16
                                  DISPOSITION
      The judgment is reversed.


             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                  COLLINS, J.


We concur:




WILLHITE, Acting P. J.




MANELLA, J.




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