Filed 1/4/16; pub. order 1/22/16 ( see end of opn.)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA

THE PEOPLE,                                              D069275

         Plaintiff and Appellant,

         v.                                              (Super. Ct. No. RIF1405208)

SABAS TRUJILLO et al.,

         Defendant and Respondent.


         APPEAL from an order of the Superior Court of Riverside County, Helios J.

Hernandez, Judge. Reversed.



         Michael A. Hestrin, District Attorney, Alan D. Tate, Deputy District Attorney, for

Plaintiff and Appellant.

         Werksman Jackson Hathaway & Quinn, Alan Jackson and Kelly C. Quinn, for

Defendant and Respondent Sabas Trujillo.

         Blumenthal Law Offices and Jeffrey G. Moore, for Defendant and Respondent

Alex Trujillo.
       Law Offices of Joel W. Baruch and Joel W. Baruch, for Defendant and

Respondent Laura Fitzpatrick.

       Law Offices of Larry M. Bakman and Larry M. Bakman, for Defendant and

Respondent Lucia Trujillo.

       Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, Benjamin

N. Gluck, for Defendant and Respondent Richard Trujillo.

       The People appeal the order sustaining a demurrer to the felony complaint in this

action, which contended (as relevant here), the complaint failed to provide sufficient

notice of its charges in violation of Penal Code sections 950 and 952. (All undesignated

statutory references are to the Penal Code.) The People maintain they met applicable

pleading requirements. We agree and reverse the order.

                  FACTUAL AND PROCEDURAL BACKGROUND

       According to the People, Defendants Sabas Trujillo, Lucia Trujillo, Richard (Rick)

Trujillo, Laura Fitzpatrick, and Alex Trujillo (collectively Defendants), own or are

current or former employees of three entities, United Paving, Prestige Striping, and

Yeguada Trujillo, Inc. Following earlier pleading challenges, the People filed a 20-count

first amended felony complaint in January 2015, alleging Defendants submitted payroll

documents that underreported employee wages over a period of years to, among others,

two insurance companies, the State Compensation Insurance Fund, and the Employment

Development Department, for purposes of reducing insurance premiums and taxes.

Specifically, the People asserted violations of Insurance Code sections 1871.4 (workers'

compensation insurance fraud), 11760, subdivision (a) (same), and 11880, subdivision (a)


                                             2
(same), Unemployment Insurance Code section 2118.5 (withholding tax fraud), Labor

Code section 1778 (wage fraud), and section 115 (false or forged instrument).

       For each count relating to insurance and tax fraud, the People identified a

particular defendant or defendants, business, the statutory provision at issue, the relevant

time period (which, according to the People, generally corresponded to an insurance

policy term), and the alleged victim. For example, Count 1 stated, in relevant part:

"[D]efendants[] SABAS TRUJILLO, LUCIA TRUJILLO and RICK TRUJILLO[]

committed a violation of California Insurance Code section 11760, subdivision (a), a

felony, in that on or about June 1, 2005 through and including June 1, 2009, . . . they did

wilfully and unlawfully make and cause to be made a knowingly false and fraudulent

statement, orally and in writing, of a fact material to the determination of the premium,

rate, and cost of a policy of workers' compensation insurance, for the purpose of reducing

the premium, rate, and cost of the insurance. (California Insurance Company by Prestige

Stripping Services, Inc.)"

       Defendants demurred on statute of limitations grounds (which are not before us),

and for failure to conform to the pleading provisions of sections 950 and 952, contending

counts were "vague and uncertain as to the charges alleged." Rick Trujillo submitted

supplemental authority in support of the demurrer, focusing on its alleged deficiency

under section 954 in bringing multiple charges under single counts.

       The trial court held a series of hearings on the demurrer. At a February 2015

hearing, the court stated the crimes at issue were single incident crimes, and the date on

which Defendants submitted a false document was the crime, explaining the specificity


                                              3
issue was the lack of specific dates. The court took the matter under submission and

subsequently issued an order, directing the People to "provide three specific dates of

crimes for each count," one within the first six months of the time period, one within six

months of the middle, and one within six months of the end. The court clarified it was

not limiting the People to "three counts per time period," but wanted to "obtain a better

view of what is truly at stake" so it "may make an appropriate ruling." At a hearing the

same day, the court again characterized the issue as "specificity under [section] 952."

       The People provided a 1,198 entry spreadsheet identifying specific dates, rather

than date ranges. The People later revised the spreadsheet to reflect 1,096 entries and

certain other revisions. At the next hearing in March 2015, the trial court found the

"spreadsheet is good, it gets all the information out there," but directed the People to

prepare an "actual amended complaint" with "specific people that are charged and a

specific date and whatever it was that they did." It elaborated the People had to "have at

least one specific date per count" and "may want to file one count for every specific date,

or just file one count and use the other stuff as 1101(b)." California Evidence Code

section 1101, subdivison (b), permits admission of evidence a person committed a crime

to prove a fact other than disposition to commit such an act.

       In April 2015, the parties again appeared on the demurrer. The People provided

copies of an amended complaint, now reflecting 1,104 counts, but maintained they were

not required to file it. The trial court reiterated its view that there was a "lack of

specificity," noting the "long time span," "number of defendants," and that "some

defendants were on some counts, some . . . in others" and finding the amended complaint


                                               4
would answer the questions of "what exactly you are charging [them] with" and "which

days." The court sustained the demurrer and the People appealed.

                                       DISCUSSION

                                     I. Legal Principles

A. Felony Prosecutions

       All felonies are prosecuted by indictment or information, other than as provided in

section 859a (which is not at issue here). (§ 737; see also § 949.) The information is

preceded by a written complaint and a preliminary examination. (§ 738.)

       The courts have observed that " 'in modern criminal prosecutions initiated by

informations, the transcript of the preliminary hearing, not the accusatory pleading,

affords defendant practical notice of the criminal acts against which he must defend.' "

(People v. Jones (1990) 51 Cal.3d 294, 317 (Jones), quoting People v. Gordon (1985)

165 Cal.App.3d 839, 870-871 (conc. opn. of Sims, J.); see also People v. Marshall (1957)

48 Cal.2d 394, 399, fn. 5 (accord); People v. Washington (1971) 17 Cal.App.3d 470, 475

(accord).) Specifically, "[t]he information plays a limited but important role - it tells a

defendant what kinds of offenses he is charged with and states the number of offenses

that can result in prosecution. However, the time, place, and circumstances of charged

offenses are left to the preliminary hearing transcript. This is the touchstone of due

process notice to a defendant. . . . The defendant may demur if he or she believes the

lack of greater specificity hampers the ability to defend against the charges." (People v.

Jeff (1988) 204 Cal.App.3d 309, 342 (Jeff).)




                                               5
B. Demurrers

        Section 1004 provides a defendant "may demur to the accusatory pleading at any

time prior to the entry of a plea, when it appears upon the face thereof" that, among other

things, "it does not substantially conform to the provisions of Sections 950 and 952, and

also Section 951 in case of an indictment or information," or "[t]hat more than one

offense is charged, except as provided in Section 954." An accusatory pleading

"include[s] an indictment, an information, an accusation, and a complaint." (§ 691, subd.

(c).)

        Section 950 requires the accusatory pleading to contain the title of the action, the

court, the parties' names, and a statement of the charged offenses. Section 952 states, in

relevant part: "[E]ach count shall contain, and shall be sufficient if it contains in

substance, a statement that the accused has committed some public offense therein

specified. Such statement may be made in ordinary and concise language without any

technical averments or any allegations of matter not essential to be proved. It may be in

the words of the enactment describing the offense or declaring the matter to be a public

offense, or in any words sufficient to give the accused notice of the offense of which he is

accused. . . ."

        Section 954 states, also in relevant part: "An accusatory pleading may charge two

or more different offenses connected together in their commission, or different statements

of the same offense or two or more different offenses of the same class of crimes or

offenses, under separate counts . . . ."




                                              6
C. Standard of Review

       "[A] demurrer lies only to challenge the sufficiency of the pleading. It is limited

to those defects appearing on the face of the accusatory pleading, and raises only issues

of law. [Citations.] ' "The [accusatory pleading] must be given a reasonable

interpretation and read as a whole with its parts considered in their context." ' " (People

v. Biane (2013) 58 Cal.4th 381, 388, italics omitted.)

       However, a demurrer in a felony proceeding on section 952 grounds also requires

consideration of the preliminary hearing or grand jury transcript. (People v. Jordan

(1971) 19 Cal.App.3d 362, 369-370 (Jordan) ["Since the constitutional application of

section 952 relies in part upon notice afforded by the transcript, it follows a demurrer

under section 1004 for failure of the indictment to substantially conform to section 952

contemplates testing the adequacy of the notice to defendant by allegations in the

language of the statute when viewed in light of the transcript."]; People v. Hathaway

(1972) 27 Cal.App.3d 586, 595 (Hathaway) [accord]; People v. Tolbert (1986) 176

Cal.App.3d 685, 690, fn. 2 (Tolbert) [same with respect to information].)

       On review, we make our own independent judgment on the sufficiency of the

complaint. (People v. Keating (1993) 21 Cal.App.4th 145, 150-151 [" ' "[W]e are not

bound by the construction placed by the trial court on the pleadings but must make our

own independent judgment thereon." ' "].)




                                             7
                                          II. Analysis

A. Notice.

       The People contend the complaint was sufficient under sections 950 and 952 at

this stage of the felony proceeding. We agree. On the face of the complaint, there is no

issue; it states the action's title, court, parties, and charges (§ 950), and the counts set

forth the charges in ordinary language and using the statutory text, as permitted (§ 952).

Although it does not identify specific dates for all counts, it is not required to do so unless

time is a material element and Defendants identify no authority to establish it is. (§ 955

["The precise time at which the offense was committed need not be stated in the

accusatory pleading, but it may be alleged to have been committed at any time before the

finding or filing thereof, except where the time is a material ingredient in the offense."].)

       With respect to the adequacy of notice for due process purposes, the authorities

direct us to review the allegations in the accusatory pleading in conjunction with the

preliminary hearing transcript, but are silent as to how to proceed when the preliminary

hearing has not occurred yet. (See, e.g., Jordan, supra, 19 Cal.App.3d at pp. 369-370.)

We find we still must consider the preliminary hearing's role, relative to notice; namely,

to provide sufficient information to satisfy due process concerns. (See, e.g., Jones, supra,

51 Cal.3d at p. 317; Jeff, supra, 204 Cal.App.3d at p. 342.) Here, the trial court requested

the People provide specific dates, information that normally is "left to the preliminary

hearing transcript." (Jeff, at p. 342.) The People provided this information and the court

found it satisfied its specificity concerns. We cannot assume the People would fail to

provide such information at the preliminary hearing and, at this early stage, find the


                                                8
complaint sufficient for notice purposes. Because we find notice sufficient, we need not

reach the parties' arguments regarding restitution.

       Defendants' arguments regarding notice at this stage are unpersuasive. First, they

contend the court cannot rely on later-provided information in assessing the sufficiency

of a complaint, citing a misdemeanor case, People v. Lamadrid (1981) 118 Cal.App.3d

786. However, Lamadrid itself distinguishes felony proceedings, noting in

misdemeanors, "no transcript of preliminary examination or grand jury proceedings will

be available (as it would be in felony proceedings) to augment the allegations of the

pleading." (Id. at p. 790; see also Sallas v. Municipal Court (1978) 86 Cal.App.3d 737,

742 ["[I]n felony prosecutions an accused will be advised of the nature of the charge

against him by the transcribed grand jury or preliminary hearing testimony, thus

ordinarily satisfying due process requirements. [Citations.] But such information is not

available to the misdemeanor defendant."].)

       They also argue that while statutory language may suffice pre-demurrer, it may

not provide sufficient notice once tested, noting due process concerns and citing cases

where statutory language was insufficient (e.g., where the statutory definitions included

unconstitutionally vague terms). The due process concerns should be resolved at the

preliminary hearing and Defendants do not argue the statutes at issue are ambiguous;

rather, they want specifics regarding the alleged crimes, which, again, are provided at the

preliminary hearing. (See Jordan, supra, 19 Cal.App.3d at pp. 369-370 [recognizing that

"pleading in the words of a statute is not sufficient where the statute itself does not give




                                              9
constitutionally adequate notice of the offense," but confirming that the adequacy of

allegations in statutory language must be tested in light of the transcript].)

       Likewise unpersuasive is Defendants' argument that the post-preliminary hearing

cases are inapplicable. As our discussion ante reflects, we find felony procedural

considerations govern felony proceedings, even at the early stages. Thus, these cases are

instructive. The dearth of authority on pre-preliminary hearing demurrers in felony

proceedings is itself telling, but also unsurprising, given the function of the preliminary

hearing in providing notice and the ability to demur to the information. (See Jordan,

supra, 19 Cal.App.3d at pp. 369-370; §§ 961, 1004.)

       Finally, Defendants suggest statutory timing rules require them to demur to the

felony complaint prior to the preliminary hearing or risk waiving their notice argument.

Section 1003 provides the demurrer and plea must be made "at the time of the

arraignment or at such other time as may be allowed to the defendant for that purpose,"

while section 1004 requires a demurrer be made before the plea. Even assuming a

demurrer to a felony complaint generally must be made prior to the preliminary hearing,

this does not change our analysis, as a defendant can demur to the information. (§§ 691,

1004; see also Tolbert, supra, 176 Cal.App.3d at p. 690.) Defendants, however, claim

failure to demur to the complaint constitutes waiver, relying on section 1012. But section

1012 simply provides that "[w]hen any of the objections mentioned in Section 1004

appears on the face of the accusatory pleading, it can be taken only by demurrer, and

failure so to take it shall be deemed a waiver thereof." (§ 1012.) It does not state a

defendant must demur at the first opportunity, nor prevent defendants from demurring to


                                              10
informations or indictments on notice grounds (as the cases reflect they do). (See, e.g.,

Jordan, supra, 19 Cal.App.3d at pp. 369-370; Hathaway, supra, 27 Cal.App.3d at p. 594;

Tolbert, supra, at p. 689.) Defendants' reliance on In re Geer (1980) 108 Cal.App.3d

1002, 1005 is also misplaced, as Geer provides no guidance on the notice issues before

us.

B. Section 954.

       We now turn to Defendants' contention that the complaint violates principles of

"duplicity" (i.e., including two or more offenses in a single count) and section 954 by

including multiple criminal acts under each count. We decline to rule on this ground, as

Defendants did not actually demur upon it.

       Section 954 is a waivable ground for demurrer. (§ 1012, People v. McNeill (1980)

112 Cal.App.3d 330, 334-335 (McNeill).) Defendants did not demur on this ground and

identify nothing to suggest the trial court ruled on it. Meanwhile, the record reflects the

trial court found the issue before it was specificity under section 952. Although

Defendants presented supplemental briefing and argument on section 954, they do not

explain their failure to include this ground in the demurrer itself. Under the applicable

pleading and waiver principles, we cannot affirm an order sustaining a demurrer by

relying on a waivable ground not stated in that demurrer, when the pleading is otherwise

sufficient. (See §1005 [demurrer "must distinctly specify the grounds of objection to the

accusatory pleading"]; People v. Palumbo (1932) 127 Cal.App. 703, 705-706 [objection

on section 954 grounds "can only be taken by demurrer"]; People v. McNabb (1935) 3

Cal.2d 441, 449 [finding demurrer deficient under section 1005 where it actually


                                             11
identified section 954, but failed to specify how the allegation violated the section];

People v. Kemp (1961) 55 Cal.2d 458, 474 ["Under [§ 1012] it is well settled that in the

absence of demurrer or proper objection, the defendant must be deemed to have waived

the point"]; see also Collins v. Rocha (1972) 7 Cal.3d 232, 239 [in civil context,

reviewing stated grounds for demurrer, but finding objection that defendant failed to raise

by special demurrer was deemed waived].)

       Although we do not reach the section 954 issue, we make two further observations

for the benefit of the parties and trial court.

       First, Defendants do not establish that the section 954 issue here (i.e., whether the

alleged criminal activity constitutes multiple offenses for section 954 purposes) could be

resolved prior to the preliminary hearing. The People maintain this case involves

"necessarily multiple identical acts for a number of ongoing plans," pointing to ongoing

payroll practices; Defendants disagree, contending each submission was a separate act

and noting the People stated payroll "was submitted to the payroll company roughly once

per week, but it did fluctuate from time to time." The case upon which Defendants rely

to contend they can demur to a complaint including multiple offenses in one count,

McNeill, supra, 112 Cal.App.3d 330, did not even involve a demurrer. There, the

reviewing court reversed a conviction on a single assault count involving four victims,

finding each assault was a separate offense, the accusatory pleading was "defective in

alleging multiple offenses in one count" (although defendant waived the issue by not

demurring), and there was no sufficient unanimity instruction. (Id. at pp. 334-335.)




                                                  12
McNeill did not address a situation where, as we may have here, information at the

preliminary hearing may inform the section 954 analysis.

       Second, even assuming section 954's "may charge . . . []under separate counts"

language, along with McNeill's findings and broader principles of duplicity, prohibit

multiple acts in the same count, the authorities on which the parties rely provide little

guidance on how to apply the facts before us to a section 954 demurrer at this stage.

       The People cite People v. Bailey (1961) 55 Cal.2d 514 and People v. Whitmer

(2014) 59 Cal.4th 733 (Whitmer). These cases address aggregation of theft offenses in

certain contexts and may not apply to the alleged criminal conduct here at all. (Bailey, at

pp. 518-519; Whitmer, at p. 740; People v. Kirvin (2014) 231 Cal.App.4th 1507, 1518.)

Defendants rely on continuing offense cases from various contexts and stages, only one

of which even addresses insurance fraud (and appears to involve incidents of fraud rather

than an alleged ongoing plan to reduce insurance premiums). (See People v. Zanoletti

(2009) 173 Cal.App.4th 547, 556 [upholding insurance fraud convictions under two

subsections of section 550, where they were based on different acts of fraud]; see also,

e.g., Wright v. Superior Court (1997) 15 Cal.4th 521, 525, 524 [finding felony

prosecution for failure to comply with sex offender registration statute was not ex post

facto because such failure was a continuing offense]; People v. Epps (1981) 122

Cal.App.3d 691, 701, 704 [reversing conviction based on multiple acts of annoying or

molesting a minor where court failed to give sua sponte unanimity instruction].)

Defendants also cite Jordan, supra, 19 Cal.App.3d at p. 371 (addressing the specificity of

assault charges on a demurrer to an indictment, not purported multiplicity in a felony


                                             13
complaint), and federal constitutional law and out-of-state authority (by its nature,

offering little guidance on section 954).

       None of these authorities expressly prohibit what the People seek to do at this

early stage, and if anything, suggest the kind of multiplicity questions at issue here may

be resolved at least somewhat later in a proceeding; e.g., after the preliminary hearing or

grand jury. (See, e.g., Whitmer, supra, 59 Cal.4th at p. 747 (conc. opn. of Liu, J)

[observing, in the theft context, "it may not be evident at the time of charging whether the

takings were 'committed pursuant to one intention, one general impulse, and one plan' "];

Jordan, supra, 19 Cal.App.3d at p. 371 [on demurrer to indictment after grand jury,

noting defendant's right "to demand the People make an election of the acts upon which

they rely as to specific counts" and finding it "appropriate . . . the election be exercised by

amendment of the accusatory pleading"]; see also People v. Salvato (1991) 234

Cal.App.3d 872, 882 ["[T]he defendant is entitled, at the commencement of trial (or as

soon as practically possible), to a prosecutorial election upon demand."]; People v.

Gonzales (2014) 60 Cal.4th 533, 537 [observing "Section 954 . . . concerns the propriety

of multiple convictions."].)




                                              14
                                     DISPOSITION

      The order is reversed and the matter is remanded to the trial court for further

proceedings consistent with this opinion.


                                                                           McINTYRE, J.

WE CONCUR:


McCONNELL, P. J.


AARON, J.




                                            15
Filed 1/22/16

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA

THE PEOPLE,                                         D069275

        Plaintiff and Appellant,                    (Super. Ct. No. RIF1405208)

        v.                                          ORDER CERTIFYING OPINION
                                                    FOR PUBLICATION
SABAS TRUJILLO et al.,

        Defendant and Respondent.


THE COURT:

        The opinion in this case filed January 4, 2016, was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is

GRANTED.

    IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and

    ORDERED that the words "Not to Be Published in the Official Reports" appearing on

page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.

                                                                   McINTYRE, Acting P. J.

Copies to: All parties



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