Filed 12/12/17 P. v. Meskin CA4/3






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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

NADER MESKIN,

Defendant and Appellant.


G053581

(Super. Ct. No. 09HF1302)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed as modified.
John F. Shuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found defendant Nader Meskin guilty of three counts of grand theft (Pen. Code § 487, subd. (a)), and found true an allegation that one of the thefts was in an amount exceeding $100,000 (§ 1203.045, subd. (a)), and also found true a sentencing enhancement allegation that defendant intentionally took, damaged, and destroyed property valued at over $50,000 (former § 12022.6, subd. (a)(1)). The court sentenced defendant to four years in county jail on the first count (a three-year upper term, plus one year for the excess taking enhancement) and ordered that two years be spent in custody in county jail followed by two years on mandatory supervision. The sentence was stayed on the remaining counts under section 654. As part of his sentence, defendant was ordered to pay a restitution fine under section 1202.4 and a mandatory supervision revocation restitution fine under section 1202.45.
Defendant challenges the sufficiency of the evidence to support his convictions and the validity of the fines. The Attorney General concedes the mandatory supervision revocation restitution fine is an ex post facto penalty which must be stricken. With such modification, we affirm the judgment.

FACTS

Behnaz Taghavi and defendant met through Taghavi’s brother, someone who defendant characterized as his “best friend.” Defendant understood Taghavi, who was a single mother at the time, had just obtained her real estate license and was interested in learning about loan processing so she could earn additional money. Being supposedly in the business, defendant agreed to mentor her.
Shortly after Taghavi began working with defendant, defendant told her he had an alternative way she could make money. He told her he knew people with many assets who were in need of liquid cash. If she loaned them money, he said he could pay her high interest on a monthly basis. Taghavi, trusting defendant because of the relationship he had with her brother, said she had a home equity line of credit from which she could pull money to invest.
At defendant’s suggestion, Taghavi pulled $125,000 from her line of credit to make a one-year investment. Defendant told Taghavi she would receive $1,500 per month in interest. He also provided her with a note and security for the investment which consisted of a deed of trust against a property located in Scottsdale, Arizona (the Scottsdale property). The deed of trust was not notarized or recorded.
Over the course of the next year, Taghavi received the promised interest payments. Most payments were made by check.
Before the initial investment term ended, defendant mentioned to Taghavi he had a smaller short-term investment opportunity available for her—a one month investment with 10% interest. Once again trusting defendant, particularly based on the interest payments he made on the first loan, Taghavi decided to make a second investment of $25,000. In exchange, defendant gave her a note and a deed of trust against a property in Newport Beach. The deed of trust was not notarized or recorded.
When the $25,000 loan became due, defendant offered to roll over (i.e., reinvest) half of it for another one-month term. Taghavi agreed, so defendant gave her back $12,500 and purported to reinvest the remainder. Defendant once again gave Taghavi a note and deed of trust, this time against a property located in Irvine, which defendant claimed he owned. As with the other deeds of trust, this one was not recorded.
When the $12,500 loan became due, defendant convinced Taghavi to roll over $6,000 of it into another one-month deal. He provided her with a note and another unrecorded deed of trust against the Irvine property.
At the end of the one-month investment period, defendant again suggested to Taghavi she roll over the $6,000, plus the 10 percent promised interest, into another short-term investment. With everything seeming to go fine on the initial $125,000 loan and interest payments, Taghavi agreed to the reinvestment. She also persuaded her then boyfriend to invest $20,000. The $26,600 investment was secured by another note and deed of trust against the Irvine property.
Thereafter, the initial one-year $125,000 loan became due. Instead of repaying Taghavi, defendant suggested she reinvest the money for another year. Because nothing appeared to be going wrong up to that point, and because she did not need the money right away, Taghavi agreed to reinvest the full amount (the second $125,000 loan). Defendant gave her a note and another unrecorded deed of trust against the Scottsdale property. The trust deed listed Felicidad Caldwell as the owner of the Scottsdale property. When Taghavi asked defendant about it, he said he was “the attorney in fact for [the owner], so he [had] authorization to sign on behalf of her.”
About one month later, Taghavi agreed to another one-month loan suggested by defendant, this time using $12,000 rolled over from one of the prior short term investments. Defendant provided her with a note and an unrecorded trust deed against the Irvine property.
While the second $125,000 loan was still outstanding, Taghavi realized she needed her money back in order to repay the bank and refinance her home mortgage. Defendant continued to sporadically give her checks for the interest on her loans, but she was unable to cash them due to insufficient funds. She asked defendant to get her money back, but he was not forthcoming with it like he had promised. Instead, he told her she should foreclose on the Scottsdale and California properties using the deeds of trust he gave her.
In the end, defendant never repaid Taghavi for the second $125,000 loan or the full amount of the short-term loans. Taghavi learned the deeds of trust defendant gave her were worthless. He did not own any of the properties to which they related, and the owners did not know their properties were being used by defendant as security for Taghavi’s loans.
Defendant was charged by information with three counts of grand theft. (§ 487, subd. (a).) The first count concerned the second $125,000 loan, the second count related to a portion of the $26,600 loan, and the third count concerned the $12,000 loan. The information further alleged the thefts were in an amount exceeding $100,000 (§ 1203.045, subd. (a)), and contained an enhancement allegation stating defendant intentionally took, damaged, and destroyed property valued at over $50,000 (§ 12022.6, subd. (a)(1)).
At trial, the jury heard testimony from Taghavi and the owners of the properties which defendant used as alleged security for the loans. Defendant, who represented himself, did not dispute the loans being made and the alleged losses. Rather, he argued to the jury he always intended to pay Taghavi back and that it was an economic downturn which led to financial difficulties that prevented him from doing so. He also attempted to explain away his failure to notarize and record the trust deeds by emphasizing the deals were “done among friends[.]”
The jury found defendant guilty on all three counts of grand theft, and found true the additional allegations concerning the amount of the loss as to count one. Defendant was sentenced as noted above and timely appealed following entry of judgment.

DISCUSSION

Defendant claims there was insufficient evidence to support a theft conviction under either of the two theories urged by the prosecution at trial—theft by trick and theft by false pretenses. He also argues the restitution fine imposed pursuant to section 1202.45, subdivision (b), must be stricken as an illegal ex post facto penalty, and the amount of the restitution fine imposed pursuant to section 1202.4, subdivision (b), is ambiguous such that the matter should be remanded to the trial court for clarification. The Attorney General concedes the validity of defendant’s position concerning restitution under section 1202.45, subdivision (b), but disagrees with defendant’s remaining contentions. Aside from the mandatory supervision revocation restitution fine, we find no error.

Standard of Review
A challenge to the sufficiency of the evidence to support a judgment implicates the substantial evidence standard of review. We “review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We do not determine the facts ourselves, make credibility determinations or resolve evidentiary conflicts. (People v. Nelson (2011) 51 Cal.4th 198, 210 (Nelson); People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (Young, at p. 1181.) Thus, ‘“[w]e presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Nelson, at p. 210.)
“‘The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations.’” (Nelson, supra, 51 Cal.4th at p. 210.) For example, “[b]ecause intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) “‘“[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.”’” (Nelson, at p. 210.)

Theft
Section 484, California’s basic theft statute, reformed the area of common law larceny “by consolidating . . . various ‘criminal acquisitive techniques[,]’ which [historically] were the subject of different common-law-defined larcenous offenses,” into one crime. (People v. Darling (1964) 230 Cal.App.2d 615, 618.) The elements of the offenses, however, were left unchanged. (People v. Traster (2003) 111 Cal.App.4th 1377, 1389 (Traster).) Thus, to support a conviction of theft under section 484, there must be sufficient evidence to satisfy the elements of at least one of the common law theft offenses. (People v. Ashley (1954) 42 Cal.2d 246, 258 [“[a] judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.”].) The same is true of grand theft, with the difference being the value of the property unlawfully taken. (§ 487, subd. (a).)
Here, we concern ourselves with the two theories urged by the prosecution, namely theft by trick and theft by false pretenses. Although the two offenses are similar, they are differentiated based on the intent of the property owner in giving the property to the defendant. If the property owner intends to give the defendant mere possession of the property, then theft by trick is implicated. (Traster, supra, 111 Cal.App.4th at p. 1387.) If, however, both possession and title pass to the defendant, it amounts to theft by false pretenses. (Ibid.)
Defendant contends there was insufficient evidence to support a theft by false pretense theory because he never acquired title to the money Taghavi gave him to invest. The Attorney General effectively concedes the point by failing to argue to the contrary. And, our review of the record reveals no evidence Taghavi intended to convey title of the money to defendant. Taghavi intended that defendant use the money to make investments on Taghavi’s behalf, not to own it. Therefore, the only theory on which the theft convictions could be sustained under the circumstances is theft by trick.
“The form of theft known as larceny by trick and device is committed when a person by means of fraud, trick, device, artifice, or false promises, which he has no intention of performing, obtains possession of property owned by another with the felonious intent to steal it from such owner.” (People v. Riley (1963) 217 Cal.App.2d 11, 18.) The elements of the crime are the following: “‘(1) the obtaining of the possession of the property of another by some trick or device; (2) the intent by the person so obtaining possession to convert it to his own use and to permanently deprive the owner of it; and (3) that the owner, although parting with possession to such person, does not intend to transfer his title to that person.’” (Traster, supra, 111 Cal.App.4th at p. 1390.)
Here, there was ample evidence to support the jury’s verdict on each count. Beginning with the initial $125,000 investment, which was not charged as a crime, defendant was the one who suggested to Taghavi that she pull money out of her home equity line of credit to invest at a high rate of return. Taghavi testified defendant knew she was a single mom and needed to make some extra money in order to be able to spend more time with her kids. He reassured her she would get the money back any time she needed it, and “guaranteed numerous time[s] . . . that [she] would never ever lose [her] money.”
After gaining Taghavi’s trust by making several of the promised monthly interest payments, defendant suggested Taghavi invest additional money on a short-term basis. Thereafter, defendant convinced Taghavi to make multiple other short-term investments, sometimes using “new” money and other times rolling over money from a prior investment. He also persuaded her to reinvest the $125,000 from her initial investment. Each time, defendant gave Taghavi a note and a nonnotarized and unrecorded deed of trust to property which he did not own or have any authority over.
Given this evidence, and the remainder presented at trial, there was more than enough for the jury to conclude defendant had set up an elaborate scheme to take Taghavi’s money and use it in a way other than she intended in giving it to him. This is classic theft by trick. (Traster, supra, 111 Cal.App.4th at p. 1390; Riley, supra 217 Cal.App.2d at pp. 20-21 [“‘It is well settled that a loan of money induced by a fraudulent representation that it will be used for a specific purpose accompanied by an intent to steal amounts to larceny by trick and device’”].)
Defendant argues there was no evidence he intended to permanently deprive Taghavi of her money. He notes his “plan entailed investments, which, of necessity, involves the intent to repay the investor his or her principle [sic] with interest.” He also highlights the interest payments and certain other repayments he actually made to Taghavi.
While the evidence could be interpreted in more than one way, we must view it in the light most favorable to the judgment. (Rodriguez, supra, 20 Cal.4th at p. 11.) From that perspective, it clearly demonstrates the tactics used by defendant to gain Taghavi’s trust, delivering worthless trust deeds to her supposedly to secure loans at a high rate of interest. Once he had her trust, he was able to manipulate her into giving him more money, or into agreeing to roll over past investments into new ones, thus avoiding the return of her principal.
The convictions are amply supported by substantial evidence.

Restitution Fines
In sentencing defendant, the court imposed a restitution fine pursuant to section 1202.4, subdivision (b). Because the court allowed defendant to serve a portion of his sentence under mandatory supervision, it also imposed, but stayed, a mandatory supervision revocation restitution fine pursuant to section 1202.45, subdivision (b). Defendant takes issue with the amount of the former and contends the latter is an illegal ex post facto penalty. We agree as to the mandatory supervision revocation restitution fine, but disagree as to the other restitution fine.
The transcript of the sentencing proceedings indicates the court imposed a $240 restitution fine pursuant to section 1202.4, subdivision (b). This amount is $40 above the minimum fine amount specified in the statute at the time the crimes were committed (i.e., 2007), and well below the maximum fine amount of $10,000 in place at the time.
Defendant does not assert the court abused its discretion in imposing the $240 fine, but instead notes a discrepancy in the court’s minutes which indicates the restitution fine imposed was in the amount of $200. But, when the record of a court’s oral pronouncements at sentencing differ from those in the clerk’s minute order, the general rule is the oral pronouncements control. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Urke (2011) 197 Cal.App.4th 766, 779.) And, contrary to defendant’s claim, the record does not demonstrate the court misunderstood the scope of its discretion.
With respect to the $240 mandatory supervision revocation restitution fine pursuant to section 1202.45, subdivision (b), as the Attorney General concedes, the fine did not exist at the time defendant committed his crimes in 2007. It was only later added to the statute via a 2012 legislative amendment which took effect in January 2013. (Stats. 2012, ch. 762, § 1.) A fine properly imposed under the law at sentencing but improper under the law at the time of the offense violates ex post facto principles. (People v. Souza (2012) 54 Cal.4th 90, 143; People v. Saelee (1995) 35 Cal.App.4th 27, 30–31.) The mandatory supervision revocation restitution fine must be stricken.

DISPOSITION

The judgment is modified by striking the $240 mandatory supervision revocation restitution fine imposed on May 13, 2016, under section 1202.45, subdivision (b). As modified, the judgment is affirmed.



IKOLA, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.