P. v. Lais

Filed 5/14/08 P. v. Lais CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed in part and reversed in part, with directions.

Gideon Margolis and Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Ronald Eugene Lais appeals from a bench trial in which he was convicted of 25 felony counts of holding himself out as entitled to practice law after he resigned from the State Bar while facing disciplinary charges. (Bus. & Prof. Code,  6126, subd. (b); all undesignated section references are to this code unless otherwise specified.) The trial court sentenced Lais to a 14-year prison term, comprised of the middle term of two years on one count, consecutive terms of eight months (one-third the middle term) on 15 other counts, and two consecutive years on an enhancement imposed because Lais committed almost half the violations while out on bail (Pen. Code,  12022.1, subd. (b)). The trial court also imposed concurrent middle terms of two years for nine counts the court described as having the same victims for which sentence has already been imposed, i.e., Lais had falsely held himself out to those clients as entitled to practice law not just once, but on multiple occasions.

Lais raises a host of claims on appeal. He challenges the sufficiency of the evidence to support his conviction on several counts. In particular, he argues the verbal notice he provided some clients concerning his suspension or resignation dispelled the notion he held himself out as entitled to practice law, despite contrary conduct. He similarly contends he did not hold himself out as an attorney because many of his clients signed written retainer agreements in which he described himself as a consultant. He also argues the prosecutor failed to link any evidence to the dates alleged in some counts. Additionally, he contends some counts duplicated others in that both involved the same victim and, because holding himself out as entitled to practice law constituted a continuing offense, he could not suffer more than one conviction for each victim. Alternatively, he contends Penal Code section 654 required a stay of any additional counts involving the same victim. He asserts his dealings with California clients concerning the law in other states does not amount to the unauthorized practice of law. He also observes the Legislature did not enact section 6126 to protect residents in other jurisdictions from the unauthorized practice of law. Finally, he raises several constitutional challenges, arguing section 6126 violates ex post facto and equal protection principles, and is vague, overbroad, and infringes free speech in proscribing the unauthorized practice of law.

As we explain below, we conclude several of the counts must be reversed for lack of evidence because the prosecutor failed to make the requisite showing or because the continuing nature of Laiss conduct in holding himself out to be an attorney precluded conviction on multiple counts involving the same victim. We also conclude evidence concerning Laiss representation of residents from other states is insufficient as a matter of law to support conviction. Because the counts we reverse suffer from a lack of substantial evidence, we remand the matter with directions to the trial court to dismiss those counts. And because we reverse a substantial number of Laiss convictions, including two on which the trial court imposed consecutive terms, we also remand for resentencing. We affirm the judgment in all other respects.

I

FACTUAL AND PROCEDURAL BACKGROUND

Consistent with the standard of review and long-established rules on appeal, we recount the factual background underlying the charges against Lais in the light most favorable to the judgment. (Walling v. Kimball (1941) 17 Cal.2d 364, 373; accord, People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 364, p. 414 [All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact].)

The State Bar suspended Lais between August 13 and December 7, 1999, with reinstatement conditioned on his obligation to make restitution for disciplinary violations. Rather than seek reinstatement, Lais permanently resigned from the bar, with disciplinary charges pending against him, on November 30, 2000.

After his resignation, Lais offered his law associate, Donald Kemp, a salary increase conditioned on permitting Lais to operate the law firm under Kemps license. Under this arrangement, Lais would continue to be the primary strategist for the cases the firm handled, responsible for provid[ing] advice to the firms clients and answering any legal questions to be [re]solved on their behalf. Kemp declined the offer and resigned from the firm. Another associate, Merrit McKeon, had worked at the firm until November 1999; she later discovered Lais used her signature stamp without her authorization.

The prosecutor presented the following evidence on the counts on which Lais was convicted:

Count 1 - Richard Chavez

Richard Chavez hired Lais to handle his child custody case in January 2001. When Chavez stated he needed an attorney, Lais responded he could handle [it]. Accordingly, Chavez paid Lais $3,000. At a court hearing in late January 2001, Chavez learned Lais had been disbarred. Lais became extremely angry when Chavez confronted him with this information. Lais informed Chavez he was in fact a licensed attorney in India. Later, Lais sued Chavez, demanding Chavez change his story as to what had transpired back in 2001.

Count 2 - Kathleen Monroe

While searching for a lawyer on October 11, 1999, Kathleen Monroe viewed the website, Law Offices of Ronald E. Lais. She soon met with Lais at his office, where she observed law books, degrees, and a sign inscribed, Ronald E. Lais Attorney at Law. Lais bragged he was the only game in town to handle her interstate child support modification matter. Monroe signed a retainer agreement bearing the name Law Offices of Ronald E. Lais, Incorporated, and she wrote a $5,000 check to the Law Office of Ron Lais.

Count 3 - Jay and Rebecca Seagrave

Jay Seagrave telephoned Lais after finding his website, Law Offices of Ron E. Lais, on the Internet in September 1999. Lais assured Seagrave that, as an attorney, he could aid him with his girlfriends interstate child custody matter. When the girlfriend, Rebecca, later phoned Lais expressing extreme[] concern[] over any delay in filing an emergency custody order, Lais promised he would file it the next day and that everything would be fine.

Count 4 - Jeremy and Jonnie Snow

Jeremy Snow retained Lais in July 2000 to handle his child custody case. On active duty in the military, he relied on his mother, Jonnie Snow, to communicate with Lais. In December 2000, Lais admitted to Jonnie he had been suspended but assured her he could continue to direct the case because he had someone in-house he would have do stuff for him. On December 26, 2000, Lais informed Jonnie he was busy preparing court papers. On January 8, 2001, he said he was busy doing research for the case. Lais claimed certain documents had been delayed because he was busy with other clients, but assured Jonnie he was working on the matter throughout January. The Snows paid Lais a total of $18,000.

Counts 6 and 7 - William Parkkonen and Attorney Nelson Mosher

William Parkkonen retained appellant in May 2000 to assist him with his child custody and divorce proceedings. In January 2001, Lais assented to Parkkonens request that he would be the only attorney working on Parkkonens case. At some time after December 1, 2000, Parkkonen received mail from Lais bearing The Law Office of Ronald E. Lais as his return address.

Attorney Nelson Mosher represented an adverse party in the Parkkonen litigation. Despite ongoing correspondence concerning the litigation, Lais never informed Mosher he was not entitled to practice law, and Mosher therefore continued to address communications to Lais as an Attorney at Law.

Counts 8 and 9 - David and Jeanne Seidman, and Attorney Gerald Phillips

When David Seidman contacted Lais in late 2000, informing him he needed an aggressive attorney, Lais responded, Im your man. In December 2000, Lais prepared Seidman for his upcoming deposition. When Seidmans wife called Laiss office in April 2001, Laiss paralegal informed her Lais was no longer licensed to practice law, but Lais came on the line to reassure her that theres no problem. Everythings okay. Let me reassure you. Im still your attorney, and Im taking care of this. It will all be handled, and theres nothing to worry about. Its going along as scheduled.

Attorney Gerald Phillips represented Seidmans former wife. On December 10, 2001, Phillips and Lais discussed Seidmans pending deposition. Lais admitted he faced disciplinary issues, but did not disclose he had been suspended. Rather, he advised Phillips he was now Seidmans counsel, had substituted in for Seidmans former attorney, and his office would be handling the deposition.

Counts 10 and 11 - Michael Bakhtari and Attorneys Richard Thomas and Jill Church

Michael Bakhtari hired Lais to assist in child custody proceedings pending in San Diego County in June 2000. After December 1, 2000, Lais continued to assure Bakhtari he was one hell of an attorney and that he knew how to talk to judges. The mother of Bakhtaris daughter took her to Mexico. Because Lais claimed he was licensed in Mexico, Bakhtari retained him for the Mexican side of the custody proceedings in April 2001, and Lais traveled to Tijuana several times on his behalf. Lais notified Bakhtari he would act as a consultant, which Bakhtari understood meant Lais would go to civil court and . . . get a judgment against the defendant.

Attorney Richard Thomas was Bakhtaris original counsel in his custody matter. Thomas brought Lais into the case as formal, associated counsel based on his experience in international child custody law. As Thomas explained, the San Diego court required his firm and Lais to file a document with the court indicating that he was counsel along with us. Through 2001, Lais continued to participate in the matter and advise Thomas and his associate, Jill Church, on international custody law, but he never disclosed his bar suspension or resignation.

Count 12 - Donna Turnbow

Facing a child custody battle with her ex-husband, Donna Turnbow retained Lais in August 2000. When she arrived for her deposition at Laiss office on December 1, 2000, he informed her he had just been suspended but that, while he would not be able to perform the deposition, he had an associate he would guide . . . through the deposition. Although he could not make court appearances, he was still the main attorney on the case. Through January 2001, Lais continually assured her he was doing everything that he could, [e]verything was in control, and [h]e was handling everything appropriately. In March 2001, Lais requested that Turnbow back-date to December 2000 a form substituting in another attorney as her counsel, but Turnbow refused.

Count 13 - Christian Fuentes

Christian Fuentes hired Lais in 1996 to handle his divorce and custody case. From December 2000 and into 2001, Lais and Fuentes engaged in numerous discussions regarding his case and case strategy. The divorce proceedings did not finalize until after 2000. The two continued to meet and confer regarding the case into early 2001. In particular, Lais advised Fuentes how to obtain legal custody of his two minor children living abroad in Chile, who Fuentes claimed his ex-wife had abducted. In all, Fuentes paid appellant around $108,000.

Counts 14 and 15 - Michael Camunas

Michael Camunas hired Lais in 2000 to defend an international paternity action involving his alleged child in Germany. Sometime after December 1, 2000, Lais advised Camunas that another attorney would work with Camunas on the matter. According to Camunas, however, he continued to consult with Lais instead of the other attorney regarding the case, including how to avoid garnishment of his wages. He and Lais exchanged multiple e-mails concerning his case in January, February, and March 2001.

Counts 16 and 17 - Belinda Hunt

Having been referred to Lais for legal advice concerning her marital difficulties, Belinda Hunt met with him at his office in January 2001. Lais did not mention he had resigned with charges pending. He informed her he had just returned from Australia where he was handling an international custody case. Lais assured Hunt he could assist her if she decided to follow through with a divorce. When she inquired about alimony and child support issues, Lais provided her with specific dollar figures she could expect to receive.

During a second meeting on January 22, 2001, Lais informed Hunt a second lawyer in his office would be involved in the litigation; however, that lawyer would be working under his direction. Hunt signed a retainer agreement, putting down more than $5,000.

During a third meeting, Lais advised Hunt he no longer wished to handle dissolution cases and that the other attorney in his office, Dean Schroeter, would therefore take over the case, albeit under his direction. Hunts understanding was that Lais would still direct the case and provide her legal advice, but that Mr. Schroeter would actually be the one to take care of going to any hearings . . . . After their initial meeting, Lais had provided Hunt with his e-mail address, REL@LAISLAW.COM, and she exchanged e-mails with him concerning her case on January 20, 2001, February 8, 2001, and March 1, 2001.

Count 19 - Peter Mendez

Dissatisfied with the attorney handling his child custody dispute with his ex-wife, Peter Mendez received a referral recommending Lais and met with him at his office in January 2002. Mendez retained Lais after Lais assured him he had been practicing for quite some time. As Mendez sat in his office, Lais telephoned Mendezs ex-wife and informed her he was representing Mendez. Lais informed Mendez later that Schroeter would make any necessary court appearances, but that Lais himself would continue to handle the case.

Count 21 - Terri Flynn and Zachariah Patrick

Terri Flynn and Zachary Patrick located Lais in January 2003 while searching the Internet for an attorney to help them with a custody matter in Canada. They met with Lais at his office the next day. Lais explained he was a retired attorney who ran a consulting business. He made clear, however, that he [was] driving the bus. He would retain Canadian attorneys and then prepare the court papers for those attorneys to file. Lais admonished Patrick and Flynn they were not to speak with these other lawyers. Lais emphasized he would control and oversee the Canadian attorneys in the litigation.

Count 24 - Sheri Toland

Sheri Toland, a Michigan resident, located Lais on the Internet in 2001 and contacted him concerning a custody matter involving her daughter, who resided in California with Tolands ex-husband. She retained Lais, who assured her he could resolve the custody dispute and also aid her in modifying her child support obligation and arrearages, which had increased. When Tolands daughter visited her in July 2003, Lais advised her not to return the child to California, but rather to enroll her in school in Michigan. He would take care of filing the paperwork necessary to obtain the requisite temporary custody order pending a hearing. Toland ultimately disregarded Laiss advice because she feared criminal charges could have been brought against me for parental kidnapping.

Counts 26, 27, and 28 - Tanya Stoffel and Attorney Tracy Gregg

Tanya Stoffel and her husband, both North Carolina residents, hired Lais in January 2003 to handle a custody case in Oregon and a paternity case in Arizona. Lais assured the Stoffels he was an expert at child custody and had handled cases similar to theirs. Lais informed Stoffel he would retain Arizona and Oregon lawyers to make court appearances. Lais retained Tracy Gregg as the Oregon attorney handling the custody matter. Gregg agreed to a reduced hourly rate and was therefore surprised to learn from Stoffel that Lais had exhausted her retainer. She contacted Lais and demanded to know why he needed more money and where he was admitted to practice law. Lais claimed to be a member of an international bar and an international legal expert, but admitted he did not belong to any state bar.

Count 30 - Lewis Perales

Lewis Perales met with Lais in September 2002 concerning a child custody and paternity case in San Diego. Lais informed Perales he was a lawyer but could not practice in the State of California. He nevertheless advised Perales, however, that he could handle child custody matters and would take the case. According to Perales, [t]he San Diego court sent a letter to my place of employment . . . wanting to know my income. Perales and his wife contacted Mr. Lais, want[ing] to know how we should deal with that. And he told us dont worry about it. If I havent been been served, it doesnt really matter. Just wait until . . . we were served papers. When we did, to forward it to him. He would take care of it.

II

DISCUSSION

A. Substantial Evidence Supports Laiss Conviction on Counts 7, 12, and 13 for Holding Himself Out as Entitled to Practice Law

Lais challenges the sufficiency of the evidence to support his conviction on counts 7, 12, and 13. The information alleged as to these counts that Lais advertised or h[e]ld himself . . . out as practicing or otherwise entitled to practice law after having resigned from the State Bar with charges pending. (See  6126, subd. (b).)[1] According to Lais, the testimony concerning his interactions with opposing counsel, Nelson Mosher (count 7), and Laiss own clients in two other matters, Donna Turnbow (count 12) and Christian Fuentes (count 13), do not support the charge. We disagree.

Consistent with our limited vantage point on appeal, we must view the evidence disclosed by the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) We presume in support of the judgment the existence of every fact reasonably inferred from the evidence. (Ibid.) That the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, a defendant attacking the sufficiency of the evidence bears an enormous burden. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)

Here, as to count 7, Lais acknowledges opposing counsel Mosher received more than a month after Lais resigned from the State Bar with charges pending a letter from Laiss office concerning a contested child custody matter and that Mosher replied with correspondence he directed to Laiss attention, inscribed Ronald E. Lais, Attorney at Law. Lais contends no evidence shows he personally held himself out as an attorney to Mosher because, after Laiss resignation date, Mosher only spoke with Laiss office manager in telephone calls Mosher made to the office. But Lais overlooks the letter that prompted Moshers return missive. A reasonable factfinder could infer Mosher addressed the letter to Lais as an Attorney at Law either because the letter that prompted Moshers reply came from Lais personally with that designation or the letter came from Laiss office staff with that designation. In either case, Lais bears responsibility for allowing the letter to leave his office falsely holding himself out to Mosher as an attorney entitled to practice law.

We reach this conclusion in light of the fact Mosher had previous personal contact with Lais as an attorney in the matter. On November 30, 2000, just before Lais resigned from the bar with charges pending, he and Mosher appeared in court for a discovery hearing. Lais represented Parkkhonen and Mosher represented Parkkhonens wife. By entering his appearance, Lais held himself out as an attorney entitled to practice law. As Lais acknowledges, it is also possible to hold oneself out as an attorney by failing to inform opposing counsel of ones status as a suspended attorney. (See In re Cadwell (1975) 15 Cal.3d 762 (Cadwell).)

In Cadwell, a law firm employed Cadwell, an attorney under suspension, as a legal assistant. Cadwell met with a new client at the firm concerning the clients divorce, and subsequently reached a negotiated agreement concerning division of property and alimony issues in a telephone conversation with the attorney for the clients wife. Cadwell did not inform opposing counsel he was under suspension. Although Cadwell did not claim he was an attorney, the Supreme Court concluded he impliedly held himself out as one by negotiating the legal sticking points of the divorce. (Cadwell, supra, 15 Cal.3d at pp. 770-771.)

Lais distinguishes Cadwell on grounds that his contacts with Mosher were less involved. Observing Mosher had no discussions with [Lais] about the facts of the case and that no evidence showed any legal issues were resolved through their correspondence, Lais asserts Mosher had no basis on which to believe appellant was a lawyer. In other words, appellant did nothing to make Mosher know, feel or understand that appellant was a lawyer. But Lais overlooks the earlier court appearance. A reasonable trier of fact could conclude that by following that appearance up with correspondence identifying himself as an attorney, Lais impliedly held himself out to Mosher as still entitled to practice law, despite his undisclosed, intervening resignation. Substantial evidence therefore supports the conviction on count 7.

Lais contends no substantial evidence supports his conviction on count 12 because he admitted to his client Turnbow that he had been suspended from the bar effective December 1, 2000, the same day she appeared at his office to have her deposition taken. Turnbow acknowledged Lais informed her he could neither represent her in the deposition nor appear in court on her behalf. But Lais overlooks that Turnbow testified Lais assured her he would nevertheless guide [her substitute attorney, Laiss associate] through the deposition and that Lais was still the main attorney and he was handling everything appropriately. For all a layperson knows, a suspended attorney may be barred from some aspects of practice such as personally handling depositions or making courtroom appearances, but nonetheless retain authorization to provide other legal services. Indeed, Lais implied as much by holding himself out as entitled to remain Turnbows main attorney and perform legal services, such as guiding a subordinate lawyer through her deposition. Substantial evidence supports the conviction on count 12.

Laiss attack on his conviction on count 13 similarly fails. True, he notified his longtime client Christian Fuentes on December 16, 2000, that he had been suspended from the bar. He contends providing Fuentes notice of the suspension establishes Fuentes knew unequivocally that Lais could not practice law, and therefore no evidence supports the conclusion Lais held himself out to Fuentes as entitled to practice. But Lais continued to meet with Fuentes for months thereafter to plot legal strategy to resolve his clients longrunning divorce and child custody case. Fuentes testified that while Lais arranged for another attorney to make court appearances, Fuentes understood that I would still get legal advice from Mr. Ronald Lais because he was familiar with the case [over] so many years. In particular, Lais continued to advise him on how to obtain legal custody of his two children in Chile. Specifically, Lais counseled Fuentes regarding provisions of the Hague Convention related to international child custody cases and how to enforce those provisions with Chilean legal authorities.

In light of Laiss conduct, it was for the trier of fact to determine whether the notice he provided Fuentes concerning his suspension was really unequivocal. A reasonable fact finder could conclude that, by continuing to perform and bill for legal services through March 2001, Lais held himself out to Fuentes as an attorney lawfully entitled, despite his suspension, to perform and receive compensation for some forms of law practice e.g., at the very least providing the legal advice for which he demanded payment from Fuentes. In short, the statutory shield the Legislature enacted to protect clients from the unauthorized practice of law does not place on the client the burden of intuiting that the scope of a lawyers State Bar suspension generally extends to all forms of practice.

B. Describing Himself as a Consultant Does Not Insulate Lais from Criminal

Liability Because He Continued to Hold Himself Out as Entitled to Practice Law

In a supplemental opening brief, Lais challenges the sufficiency of the evidence he held himself out as an attorney on most counts (1, 7, 10, 11, 14, 15, 16, 17, 18, 21, and 24) because the applicable written retainer agreements signed by his clients did not identify him as an attorney, but instead expressly stated he provided child custody and visitation consulting services to [the] client . . . . (Italics added.) The flaw in this argument is that, despite the terms of the agreement, Laiss actions of assuring clients he was their main attorney or was directing other attorneys establishes that he was not merely acting as a consultant, but rather held himself out as entitled to practice law. In sum, Lais was not entitled to immunize himself with a misleading written disclaimer that was at odds with his actual conduct.

C. Substantial Evidence Supports Laiss Conviction on Count 16 for Holding

Himself Out as Entitled to Practice Law, But Not on Counts 17, 18, or 25

Lais contends the prosecutors failure to produce or tie evidence to the dates specified in some counts in the information precludes conviction on those counts. We agree with respect to counts 17, 18, and 25, but not count 16.

The prosecutor informed the trial court that Belinda Hunts testimony would form the basis for counts 16 and 17. The prosecutor alleged in count 16 that Lais violated section 6126, subdivision (b), [o]n or about March 01, 2001 by holding himself out as practicing or entitled to practice law despite having resigned from the bar with charges pending. Count 17 alleged Lais held himself out as an attorney in violation of section 6126, subdivision (b), between May 21, 2001 and November 1, 2001.

Laiss ex-wife recommended Hunt retain Lais when Hunt informed her she needed an attorney because she and her husband were separating. Hunt visited Lais at his law office in January 2001 and, after he said he could assist her in obtaining a divorce and she corresponded further with him at the e-mail address he provided, REL@LAISLAW.COM, she paid Lais a $5,000 retainer. In March or April 2001, Lais informed Hunt another attorney in his office would become the attorney of record in the matter, but that attorney would serve under his direction and Lais would continue to control the matter.

Lais complains none of the foregoing interactions with Hunt occurred on the March 1, 2001 date specified in count 16. Lais and Hunt did exchange e-mails on March 1, 2001, but Lais argues their exchange was insufficient to support count 16 because none of the messages he sent or received through his electronic address at LAISLAW.COM suggested he was or claimed to be an attorney. Even assuming Lais is correct that the e-mail exchange does not support the charge, his delegation of Hunts matter to another attorney under his direction in the general March or April timeframe suffices to support count 16. By representing to Hunt that he would direct the other attorney and continue to control her dissolution proceedings, Lais held himself out as entitled to practice law in this manner.

The discrepancy between the on or about March 01, 2001 date the prosecutor alleged in count 16 and the March or April timeframe he proved at trial is of no moment. The law is clear that, when it is charged that an offense was committed on or about a named date, the exact date need not be proved unless the time is a material ingredient in the offense (Pen. Code, 955), and the evidence is not insufficient merely because it shows that the offense was committed on another date. [Citations.] (People v. Starkey (1965) 234 Cal.App.2d 822, 827; accord, People v. McDade (1991) 230 Cal.App.3d 118, 126, 127 (McDade).) Here, Lais held himself out as entitled to practice law in proximity to March 1st. Because the exact date was not a material ingredient of Laiss offense, his conviction on count 16 stands.

Counts 17, 18, and 25 are a different story. The prosecutor alleged in count 17 that Lais held himself out to Hunt as an attorney between May and November 2001, but no evidence showed any interactions between Hunt and Lais during that timeframe. Hunt had apparently terminated Lais by then. The Attorney General relies on McDade for the principle that the exact date may be immaterial to proving the offense, but here the prosecution failed to present evidence remotely near the charged time period. Dispensing altogether with the May-November 2001 window alleged in the information, the Attorney General attempts to tie count 17 back to the early January 2001 period in which Hunt first retained Lais.

Even if we accepted the Attorney Generals theory, count 17 suffers a more fundamental defect. Laiss interactions with Hunt, beginning in January 2001 and through his delegation of the matter in March or April 2001 to a subordinate attorney, constituted a continuous course of conduct in which Lais held himself out to Hunt as entitled to act as her attorney. The continuous nature of this conduct supports, as we discuss more thoroughly in part D. below, only one conviction for holding himself out to Hunt as entitled to practice law. (See People v. Keehley (1987) 193 Cal.App.3d 1381, 1385 [In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period].) Consequently, count 17 must be reversed.

We must also reverse counts 18 and 25 because the prosecutor presented no evidence to support these convictions. Lais plausibly theorizes that count 25, concerning the period between March 26 and June 20, 2003, related to Laiss representation of a client named Gayle Billadeau, as disclosed by the prosecutors investigator at the preliminary hearing. But Billadeau did not testify at trial. Accordingly, no evidence supported count 25. Count 18 is even more mysterious, as the prosecutor first notified the trial court that Hunts testimony could potentially support that charge, and later advised the court that was not the case. In the absence of evidence supporting count 18 or count 25, we reverse Laiss conviction on those charges.

D. Evidence Lais Held Himself Out as an Attorney to Particular VictimsMore than

Once Supports Only One Conviction for Each Victim

Lais contends that with respect to each victim, the evidence may lawfully support only a single conviction for holding himself out as an attorney or actually practicing law. Alternatively, he argues many of the counts on which the court imposed a concurrent sentence should have been stayed under Penal Code section 654 because holding himself out as an attorney to a particular victim on multiple occasions constituted an indivisible course of conduct. We agree that his convictions must be overturned, and not merely stayed, for counts that are duplicative based on the nature of his conduct as a continuing offense. We note, however, that many of the counts Lais attacks as duplicative actually involved multiple victims, for example, both a client and opposing counsel. The convictions on these counts therefore stand. (See People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11 [although directed to one objective, a course of conduct involving multiple victims may give rise to multiple violations and punishment].)

A defendant may not be subjected to multiple convictions for the same offense where only one criminal act occurred. (See People v. Lewis (1978) 77 Cal.App.3d 455, 461 [single, continuing offense of pimping may not be parsed into separate and discrete offenses].) Whether particular instances of conduct constitute multiple criminal acts or a single continuing offense subject to one conviction is a question of law that depends on the nature of the offense. (Id. at pp. 460-462.) A continuing offense is one in which the defendant achieves no finality, but rather continues the same course of conduct after completing the threshold elements necessary for prosecution. (Wright v. Superior Court (1997) 15 Cal.4th 521, 526.) Section 6126, subdivision (b), provides that an attorney who has resigned from the State Bar with charges pending commits a criminal offense if he or she thereafter practices or attempts to practice law, [or] advertises or holds himself or herself out as practicing or otherwise entitled to practice law . . . .

The gravamen of the offense as applicable to Lais holding himself out as actually practicing or entitled to practice law involves a continuing course of conduct. Lais never held himself out as only entitled to practice up until a particular date. To the contrary, even when he advised some clients he had been suspended by the bar, he held himself out as nevertheless authorized to practice law by directing less experienced attorneys on his clients behalf. His actions impliedly represented to his clients he was entitled to practice law in this manner so long as he did not, for example, defend depositions or appear in court. Because the gravamen of Laiss offense was continuing in nature with respect to each victim, i.e., he held himself out as continually available as an attorney to each victim, he could only be convicted on one count of violating section 6126 for each victim.

Lais contends his convictions on counts 7, 15, 16, 17, 18, 27, and 28 were duplicative of other counts concerning the same victim and therefore must be reversed. Laiss argument fails with respect to counts 7 and 28 because those counts pertained not to clients victimized in other counts, but to opposing counsel (Mosher, count 7; Tracy Gregg, count 28). The same is true for counts 9 and 11, which involved the attorneys for Seidman and Bakhtari, respectively. As noted, our Supreme Court has explained that the unauthorized practice of law includes falsely holding oneself out to opposing counsel as being entitled to practice law. (Cadwell, supra, 15 Cal.3d at pp. 770-772.) The counts involving opposing counsel therefore withstand Laiss attack. Counts 16, 17, and 18, in contrast, involved a single client, Hunt, and not opposing counsel or any additional victim. Consequently, only one of these counts survives.[2] Lais also gains reversal of counts 15 and 27 as duplicative of counts 14 (client Camunas) and 26 (client Stoffel), respectively.

E. The Convictions for Unauthorized Practice of Law Concerning Out-of-State

Victims Must Be Reversed

Lais contends several of his convictions must be reversed because the Legislature has not criminalized the unauthorized practice of law involving clients who have little or no contact with California. Nor, he argues, has the Legislature criminalized advice given to California clients concerning out-of-state law. Lais is correct on the former point, but not the latter.

In Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119 (Birbrower), the Supreme Court evaluated whether an out-of-state law firm, not licensed to practice law in this state, violated section 6125 when it performed legal services in California for a California-based client under a fee agreement stipulating that California law would govern all matters in the representation. (Id. at p. 124.) Section 6125 specifies that a person commits the unauthorized practice of law in California unless the person is an active member of the State Bar. The court focused on the defendant firms alleged performance of legal services in California and stated: In our view, the practice of law in California entails sufficient contact with the California client to render the nature of the legal service a clear legal representation. (Birbrower, supra, 17 Cal.4th at p. 128, italics added.) Birbrower instructs that the purpose of Californias statutory scheme is to protect California citizens from incompetent attorneys, noting California is not alone in regulating who practices law in its jurisdiction. Many states have substantially similar statutes that serve to protect their citizens from unlicensed attorneys who engage in unauthorized legal practice. (Id. at p. 132.)

As a later case explained, implicit in Birbrowers analysis is the ingredient that the client is a California client, one that either resides in or has its principal place of business in California. (Estate of Condon (1998) 65 Cal.App.4th 1138, 1145 (Condon).) In reversing the trial courts finding the defendant attorney violated Californias statutory scheme, the Condon court observed: Clearly the State of California has no interest in disciplining an out-of-state attorney practicing law on behalf of a client residing in the lawyers home state. (Id. at p. 1146.) The Attorney General distinguishes Condon on the grounds Lais is a California attorney, rather than from out of state as in both Condon and Birbrower. But the principle remains the same: [A]s articulated in Birbrower, [because] the goal of section 6125 is to protect California citizens from incompetent or unscrupulous practitioners of law we must conclude that section 6125 is simply not applicable to our case. (Condon, at p. 1146.) So it is here.

We therefore reverse count 24 because there is no dispute Toland resided in Michigan. Having found Lais over the Internet, she contacted him from Michigan concerning a custody matter involving her daughter who resided in California with Tolands ex-husband. Toland admitted Lais never appeared in any California court on her behalf. (See Condon, supra, 65 Cal.App.4th at p. 1146, fn. 7 [suggesting court appearances by an attorney, even if from out of state and representing an out-of-state client, would subject the lawyer to discipline].) Similarly, Tanya Stoffel and her husband resided out of state, in North Carolina, and the Oregon attorney Lais told them he directed on their behalf in their Oregon custody matter resided in Oregon. Counts 26, 27, and 28 concerning the Stoffels and their attorney, Tracy Gregg, must therefore be reversed because no evidence implicates the statutory purpose of protecting California residents from the unauthorized practice of law.

Not so for count 21. The record supports the conclusion Zachariah Patrick and his fiance, Teri Flynn, resided in California, since they met Lais at his office the day after finding him on the Internet. Moreover, Flynn testified she worked as an assistant United States attorney across the street from Lais, and Patrick testified he returned to his residence after meeting with Lais to discuss with Flynn whether to retain Lais, which he did later the same day. Lais, however, claims he is nevertheless immune from prosecution because he only advised the couple on Canadian law concerning custody of Patricks daughter in Canada. But California residents are entitled to protection from persons practicing law without a license even if dispensing legal advice concerning other jurisdictions. As the Supreme Court has observed, Whether a person gives advice as to local law, Federal law, the law of a sister State, or the law of a foreign country, he is giving legal advice . . . . To hold otherwise would be to state that a member of the Bar only practices law when he deals with local law, a manifestly anomalous statement. (Bluestein v. State Bar of California (1974) 13 Cal.3d 162, 173-174.) Laiss attack on count 21 is therefore without merit but, as noted, we reverse his convictions in counts 24, 26, 27, and 28.

F. Constitutional Arguments

1. Ex Post Facto Punishment

Lais contends his felony conviction on counts 1 through 18 for conduct preceding 2003 violates ex post facto principles if based on [the] actual practice of law, rather than on holding himself out as entitled to practice law. (Italics added, capitalization removed.) Before 2003, section 6126 made it a misdemeanor for a defrocked or suspended attorney to practice or attempt to practice law but a felony for the attorney to advertise or hold himself out as entitled to practice law. (Stats. 1988, ch. 1159,  26.) In 2002, the Legislature eliminated the misdemeanor quirk with an amendment effective January 1, 2003, elevating the practice or attempted practice of law by a former attorney to a felony. (Stats. 2002, ch. 394,  1; see  6126.) This statutory change, however, has no relevance here because the information charged Lais not with the actual practice of law, but with holding himself out as entitled to practice, which was a felony both before and after 2003.

The prosecutor did not attempt to prove Lais actually practiced law, but rather that he represented he was entitled to do so, as charged in the information. Accordingly, we see no reason to conclude the trial court found Lais guilty of violating the portion of section 6126, subdivision (b), aimed at the actual practice of law. Rather, we presume the court, guided by the information, decided the cause based on the evidence presented. (Evid. Code,  664.) Consequently, the ex post facto bar on which Lais relies has no application here.

2. Equal Protection

Lais argues it violates equal protection for the Legislature to make a laymans unauthorized practice of law a misdemeanor but a felony for the same conduct by a former lawyer. (Compare  6126, subd. (a) with subd. (b).) The Legislature, however, could reasonably conclude former lawyers pose a greater danger of misleading clients that they are entitled to practice law and that greater deterrence was appropriate for those whose suspension or disbarment demonstrates ample willingness to flout rules and standards. In short, because nonlawyers and former lawyers are not similarly situated, Laiss equal protection argument fails. (See People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 502 [equal protection means simply that persons similarly situated with respect to the legitimate purpose of the law receive like treatment].)

3. Vagueness/Overbreadth

Lais attacks section 6126 as vague and overbroad but our Supreme Court has repeatedly rejected these claims, most recently in Birbrower. (Birbrower, supra,17 Cal.4th at p. 128; see, e.g., People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535 (Merchants).) In Birbrower, the Supreme Court noted the Legislature did not define practice law, but case law explained it as the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure. [Citation.] Merchants included in its definition legal advice and legal instrument and contract preparation, whether or not these subjects were rendered in the course of litigation. (Birbrower, at p. 128, italics added.) The Birbrower court endorsed precedent concluding that the Legislature accepted both the definition already judicially supplied for the term and the declaration of the Supreme Court [in Merchants] that it had a sufficiently definite meaning to need no further definition . . . . (Birbrower, at p. 128.)

Lais relies on Justice Kennards lone dissent in Birbrower, including her lengthy quotation from a respected law journal, which we set out in the margin, but this view did not carry the day.[3] Echoing the Birbrower dissent, Lais argues the complexities of modern life did not exist when Merchants was decided, but this point has no new salience since the Supreme Court majority turned it aside. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Lais contends his challenge warrants particularly close scrutiny based on the First Amendment, but there is no free speech right to give legal advice without a license. (Howard v. Superior Court (1975) 52 Cal.App.3d 722, 727.) Laiss vagueness and overbreadth arguments are therefore without merit.

III

DISPOSITION

We reverse Laiss convictions on counts 15, 17, 18, 24, 25, 26, 27, and 28 for lack of substantial evidence. Because no evidence supports these convictions, we remand with directions for the trial court to dismiss these counts. Because we reverse a substantial number of Laiss convictions, including two on which the trial court imposed consecutive sentences, we direct the trial court to resentence Lais. The judgment is affirmed in all other respects.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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[1] Section 6126, subdivision (b), provides, in pertinent part: Any person who has been involuntarily enrolled as an inactive member of the State Bar, or has been suspended from membership from the State Bar, or has been disbarred, or has resigned from the State Bar with charges pending, and thereafter practices or attempts to practice law, advertises or holds himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment in the state prison or a county jail.

[2] Given that we determined above in Part II.C. that counts 17 and 18 must be reversed for other evidentiary failings, the surviving count concerning Hunt is count 16.

[3] Justice Kennard wrote, The majoritys overbroad definition would affect a host of common commercial activities. On point here are comments that Professor Deborah Rhode made in a 1981 article published in the Stanford Law Review: For many individuals, most obviously accountants, bankers, real estate brokers, and insurance agents, it would be impossible to give intelligent counsel without reference to legal concerns that such statutes reserve as the exclusive province of attorneys. As one [American Bar Association] official active in unauthorized practice areas recently acknowledged, there is growing recognition that all kinds of other professional people are practicing law almost out of necessity. Moreover, since most legislation does not exempt gratuitous activity, much advice commonly imparted by friends, employers, political organizers, and newspaper commentators constitutes unauthorized practice. For example, although the organized bar has not yet evinced any inclination to drag [nationally syndicated advice columnist] Ann Landers through the courts, she is plainly fair game under extant statutes [proscribing the unauthorized practice of law]. [Citation.] (Birbrower, supra, 17 Cal.4th at p. 144 [Kennard, J., dissenting].)