Filed 5/10/18 P. v. Zhang CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ZIHAN ZHANG,

Defendant and Appellant.
D071409



(Super. Ct. No. SCD258832)

APPEAL from a judgment of the Superior Court of San Diego County, Yvonne E. Campos, Judge. Affirmed in part, reversed in part, and remanded with directions.

Theresa Osterman Stevenson, 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, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Zihan Zhang of three counts of grand theft of labor or money (Pen. Code, § 487, subd. (a)), two counts of refusing to pay wages (Lab. Code, § 216, subd. (a)), and four counts of failing to provide itemized statements to her employees (§§ 226, subd. (a), 226.6). Zhang was prosecuted after several of her former employees filed wage claims with the California Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE), which is overseen by the Labor Commissioner. At trial, the People introduced in evidence the Labor Commissioner's awards (awards) to two victims as well as the expert testimony of two DLSE deputy labor commissioners, who opined that Zhang had violated numerous wage and labor laws against the victims. On appeal, Zhang contends that (1) the trial court erred in admitting the testimony of, and records maintained by, the Labor Commissioner, and/or her trial counsel was ineffective in failing to object to the admitted evidence; (2) insufficient evidence supports her convictions for grand theft and refusal to pay wages; (3) the court erred in instructing the jury on a point of law regarding grand theft; (4) the court erred in imposing punishment on both the crimes of grand theft of labor and refusal to pay wages; (5) the court abused its discretion in sentencing; and (6) the abstract of judgment incorrectly reflects a $600 restitution fine.
For reasons we discuss, we conclude that Zhang's trial counsel was ineffective in failing to object to the awards and related expert evidence. There is a reasonable probability that the improperly admitted evidence affected the jury's verdicts on the counts involving grand theft of labor and refusal to pay wages (counts 1, 2, 4, and 5). Accordingly, those convictions are reversed. However, the evidence was not prejudicial as to Zhang's convictions for grand theft of money/gratuities (count 3) and failing to provide itemized statements to her employees (counts 6 through 9). On those counts, we conclude there is no reversible error on any asserted ground and affirm her convictions.
FACTUAL AND PROCEDURAL HISTORY
In 2013, Zhang immigrated to the United States on an E-2 investor visa and became the sole owner of a San Diego restaurant called Antique Thai, which served Thai cuisine. Zhang, who has a college degree and speaks multiple languages, purchased Antique Thai for about $160,000. The restaurant operated every day of the week from 11:00 a.m. to 10:00 p.m. Zhang was the restaurant's head chef.
Between November 2013 and March 2014, Zhang hired numerous people to work at Antique Thai as servers and/or cooks—Pam, Nat, Matt, Tita, and Joey, to name a few. Zhang promised to pay her employees in accordance with California's labor laws, which provided for a minimum wage of $8 per hour at the time, every two weeks. If employees were servers, they would further be entitled to gratuities. However, at no time did Zhang utilize a uniform timekeeping method to keep track of her employees' hours, forcing some employees to record their hours on private calendars. Zhang also did not timely collect her employees' tax deduction information, which prevented the timely preparation of deduction statements. Zhang's administrative failures were instrumental to her maltreatment and manipulation of employees.
In addition, Zhang did not maintain a policy on rest and lunch breaks or adequate staffing to accommodate breaks. As a result, employees were consistently deprived of their rest and lunch breaks. Some ate their meals in between serving customers.
Further, Zhang took 10 percent of each server's tips through a practice of tip pooling. After lunch and dinner shifts, Zhang required all the servers to combine their earned tips, take out 10 percent of the pooled amount, and place the 10 percent amount in an envelope that the servers believed would be given to "kitchen staff." The servers equally divided the remaining pooled tips among themselves. Instead of giving the reserved 10 percent amount to kitchen workers, Zhang took the money and reported it as her own tip income for tax purposes. Zhang reported tip income for every pay period between November 2013 and March 2014, equaling over $8,200 in tips taken from various servers during that period.
Zhang also charged servers a $5 "breakage fee" every shift a server worked to cover any broken dishware. All servers were charged the $5 breakage fee regardless of whether they broke anything. We summarize the relevant circumstances of particular employees post:
Pam, Nat, and Matt
Pam and Nat worked for the prior owner of Antique Thai and agreed to stay employed by Zhang as servers. Zhang paid them only $20 in cash wages for many of their shifts, even if the shift lasted well over five hours. Neither Pam nor Nat received pay stubs or deduction statements for their cash wages. Also, both Pam and Nat had to comply with Zhang's tip pooling practice, and they separately experienced specific instances of Zhang's demanding to share in their tips.
Zhang hired Matt to serve customers and assist in the kitchen for $8 per hour. Matt was not paid for over five hours of work in any given shift although he frequently worked for more than five hours at a time. Like others, he was forced to comply with Zhang's tip pooling practice. He did not receive his first paycheck until almost one month after his start date, unaccompanied by a pay stub. Further, he worked for another month without receiving a paycheck or pay stub. In mid-April 2014, after terminating Matt, Zhang provided him with four paychecks and pay stubs that she had backdated to various dates in February, March, and early April. Even so, Matt believed he was still owed wages for 19 hours of work.
Tita
Zhang hired Tita as a server, promising to pay her every two weeks. Shortly after beginning her employment, Tita obtained Zhang's agreement to pay her $11 per hour instead of minimum wage because the restaurant was often understaffed. Tita recorded her hours in a notebook every day that she worked, which was often from 10:00 a.m. until well past 10:00 p.m. without rest and lunch breaks. In the mid-February 2014 time frame, Tita worked 13 days in a row. Like other employees who both served and cooked, Tita gave up 10 percent of her tips as a server but did not receive a share of servers' tips for shifts that she worked primarily in the kitchen.
Tita did not receive a paycheck or pay stub between her start date and her last day of employment over two months later. About a month after starting work, Tita asked Zhang for her wages, but Zhang claimed to be too busy and said she needed to talk to her bookkeeper. Subsequently, Tita asked Zhang for money to buy a car at an auction. Zhang gave Tita $950 in cash to contribute toward the car, unaccompanied by a pay stub, and Tita was uncertain whether the money constituted a loan or compensation.
On Tita's last day of work, she and Zhang argued over the amount of wages that Tita was entitled to, and the argument was captured on a surveillance video camera. In the video, Zhang claimed that she could not afford Tita and offered her a "blank [check]" to fill in, which Tita rejected and indicated that Zhang must properly calculate her wages. Zhang fired Tita and gave her two backdated checks, bearing the amounts of $852.23 and $911.45, respectively, without pay stubs.
Joey
Zhang hired Joey as a cook for $8 per hour. Joey kept track of his hours by typing them in the "notes" application of his cell phone. He worked 10 to 12 hours a day, with occasional breaks. During the last few weeks of employment at Antique Thai, Joey also served tables.
Joey was not paid wages every two weeks, as promised. Whenever he needed money, he asked Zhang to pay him. Zhang would allow Joey to use her Bank of America debit card to withdraw $200 or $300 from an ATM. Over the course of two months, Joey received $1,300 in cash through five separate ATM withdrawals. He did not receive a pay stub or deduction statement with these amounts.
At one point, Zhang presented Joey with a Chinese "red envelope" containing $800 in cash. Joey was surprised and asked her if the money constituted some portion of his wages, but Zhang responded that the money was a gift.
On another occasion, while Joey was owed wages, Zhang threw a signed blank check at him and told him to "get out of here." Joey believed he was supposed to fill in an amount for his unpaid wages, but felt uncomfortable about the situation, did not fill in the check, and put it in a drawer at home. Before long, Zhang rehired him, but then fired him a few days later. His last day of employment at Antique Thai, for the final time, was March 14, 2014. Over the next two weeks, he asked Zhang for his owed wages, but she refused to pay him anything more.
DLSE Proceedings
After their terminations, Tita, Joey, and two other former Antique Thai employees (J.C. and M.R.) filed wage claims with the DLSE, the government agency tasked with resolving wage disputes and enforcing labor laws. A deputy labor commissioner, Rosemary Black, was assigned to handle the employees' wage claims. Zhang settled J.C.'s claim, and the Labor Commissioner dismissed M.R.'s claim because he did not appear at the hearing on his claim.
Black assisted Tita and Joey with completing their wage claim forms, including overtime worksheets, and attempted to arrange settlement conferences between the employees and Zhang. Zhang was uncooperative and belligerent when Black tried to explain the wage dispute process, and Zhang did not appear at Tita's or Joey's settlement conferences.
Tita's and Joey's claims proceeded to administrative hearings before a hearing officer. Zhang did not appear at the hearings or present any evidence contradicting the employees' claims. The hearing officer awarded Tita and Joey over $8,500 and $2,000 in wages, respectively, based on a preponderance of the evidence standard. The DLSE maintained "case files" for each employee, including their forms, supporting documents, and awards.
Concurrently with the wage claims, Deputy Labor Commissioner Deidra Buffington was tasked with conducting a workplace inspection of Antique Thai. Buffington witnessed Zhang cause a "commotion" in the public counter area of DLSE's office regarding an employee's wage claim. Two days after the office commotion, Buffington conducted an on-site inspection of Antique Thai. She found multiple deficiencies in workplace postings, and issued Zhang a "notice to discontinue labor law violations." Buffington also issued an order for Zhang to appear before the Labor Commissioner and bring several categories of documents to the meeting, including employees' time records, employees' identifying information, and itemized wage statements.
Zhang did not properly comply with the Labor Commissioner's order and brought only payroll register reports with her to the scheduled meeting. Without time records, Buffington could not confirm that the hours shown on the payroll register reports were the actual hours worked by the listed employees. Buffington spoke to several employees and, ultimately, in July 2014, issued a wage citation charging Zhang with violating numerous Labor Code provisions, including the minimum wage law as to Tita, Joey, Matt, Pam, and M.R. Zhang appealed the citation.
During the administrative proceedings, Buffington told Joey that he could try and use his own efforts to collect wages from Zhang because there was no guarantee he would receive any payments from Zhang through the DLSE's efforts. Having accumulated numerous debts by the mid-July 2014 time frame, Joey filled in the signed blank check Zhang had previously given him, in the amount of $2,367, and used the money to pay his rent and living expenses.
Criminal Case
In October 2014, the San Diego County District Attorney's office initiated Zhang's criminal case. The second amended information filed in May 2016 charged her with nine counts, as follows: (1) grand theft of Tita's labor (Pen. Code § 487, subd. (a); count 1); (2) grand theft of Joey's labor (Pen. Code § 487, subd. (a); count 2); (3) grand theft of money/gratuities (Pen. Code § 487, subd. (a); count 3); (4) refusal to pay wages to Tita (§ 216, subd. (a); count 4); (5) refusal to pay wages to Joey (§ 216, subd. (a); count 5); and (6) failure to provide an itemized statement to Tita, Joey, Pam, and Matt (§§ 226, subd. (a), 226.6; counts 6, 7, 8, & 9, respectively, as to each named employee).
The People filed a motion in limine to admit the DLSE's case files, including the employees' claim forms, wage calculations, and awards, as well as the testimony of Black and Buffington as custodians of the records, under the business and/or official records hearsay exceptions. (Evid. Code, §§ 1271, 1280.) At the hearing on the motion in limine, defense counsel asserted the following objection:
"My only objection . . . [is] that some of these records may kind of tap into the province of the jury's process of having to make certain conclusions themselves based on the review of the evidence. And I'm concerned a lot of these documents may have someone else's opinion of what the dollar amounts were."

The actual exhibits were not yet available for the court to review. In response to defense counsel's objection, the court indicated that it was tentatively inclined to admit the evidence because the jury would be properly instructed on the required findings it must make and the elements of the offenses, e.g., grand theft required the taking of more than $950. The court informed defense counsel that he could re-raise objections as the exhibits became available and/or were introduced.
Zhang filed a motion in limine to "preclude officers from testifying to statements made by witnesses being called to testify" on the ground that the testimony would require an undue consumption of time under Evidence Code section 352 and would contain hearsay. At the motion hearing, defense counsel clarified that "officers" referred to the DLSE's "investigators," and he did not want Buffington to "repeat or regurgitate [her] entire investigation" when the victims would already be testifying about the underlying events. The prosecutor responded that the People intended to elicit only Zhang's statements through the deputy labor commissioners, which would be admissible because they were being offered by a party opponent. The prosecutor further argued that other hearsay exceptions would apply regarding the claims of testifying victims or nontestifying former employees. Defense counsel rejoined that Zhang's confrontation rights would be violated if the DLSE's agents were permitted to testify to the statements of J.C. and M.R., who the People did not intend to call as trial witnesses.
Without definitively ruling on the issue, the court expressed some concern regarding Zhang's confrontation rights if the DLSE's agents were permitted to testify regarding J.C.'s and M.R.'s statements. Although the People disputed that J.C.'s and M.R.'s complaining statements were "testimonial" under Crawford, they ultimately chose not to introduce J.C.'s and M.R.'s complaints, and instead introduced evidence that (1) Zhang settled J.C.'s claim for $276 on February 28, 2014, using a check that was backdated to January 31, 2014; and (2) the DLSE dismissed M.R.'s claim because he did not show up at his hearing, but it appeared to Black that Zhang had paid M.R. during his employment with backdated checks.
During the evidentiary portion of trial, the jury heard testimony from the deputy labor commissioners, law enforcement investigators, the named victims, other former employees of Antique Thai, a custodian of records for Bank of America, and two employees of Loc Tax Services (Loc), which provided bookkeeping and payroll services for Zhang. For the most part, defense counsel did not assert objections to Black's or Buffington's testimony as they testified, and when explicitly asked by the court whether he had any objections to the admission of documents maintained by the DLSE, counsel stated, "No."
The awards to Tita and Joey were admitted in evidence. The awards show that Tita and Joey were entitled to receive $8,551.50 and $2,087, respectively, in wages from Zhang.
The People presented Black as an expert on the Labor Code as well as the wage claim and administrative hearing process. Black had handled thousands of wage disputes in her 16-year career as a deputy labor commissioner. In addition to extensively describing the wage claim process, Black provided her opinion on what was required to be on a deduction statement, whether a restaurant owner is entitled to collect tips, the law on "overtime" pay, the law on pay periods, whether "breakage fees" are permissibly charged under the law, the rules on meal and rest periods, and other areas of law.
Black also testified to the settlement of J.C.'s claim, the dismissal of M.R.'s claim, her assignment to Tita's and Joey's claims, and her related interactions with Zhang. Black read the awards to the jury and, further, provided her opinion of the awards' validity and/or correctness. For example, she explained that Tita was entitled to liquidated damages, as follows:
"The law requires that an employee is paid at least minimum wage for all hours worked in a pay period. In this instance if a pay period is not—you don't pay anything during that pay period, then they are entitled to minimum wage for all hours worked in the pay period. So by the time [Tita's claim] got to hearing the hours that would equate to $3,845.28 at minimum wage, which was $8 an hour, had not been paid. And so in addition to the minimum wage she got this additional amount of money which is essentially doubled her wage from 8 to 16 an hour because this is a penalty that's imposed for the employer's failure to pay minimum wage during the pay period. That goes away at any point the employer pays it. But at the time of the hearing these wages still had not been paid. So I can translate this into the number of hours that were not paid if you like, but I can tell you the amount written on this page is $3,845.28 at $8 an hour." (Italics added.)

As to Joey's claim, Black testified that "he was . . . awarded liquidated damages because there were pay periods where he was paid nothing, not even minimum wage, for hours worked, and that amount came to $1,650."
Buffington, who is a licensed attorney, testified to the details of her workplace inspection of Antique Thai, including her interactions with Zhang, and opined that Zhang violated various provisions of the Labor Code. Buffington further opined that Zhang failed to pay wages to at least Tita and Joey, which led to the wage citation, discussed ante. The notice to discontinue labor law violations, wage citation, and order to appear, all issued by Buffington on behalf of the Labor Commissioner, were admitted in evidence without objection.
From Bank of America's custodian of records, the jury learned that Zhang's bank accounts contained tens of thousands of dollars throughout the period she claimed to lack funds to pay her employees; for example, on March 7, 2014, her business account had a balance of around $56,000.
Loc's bookkeeper testified that Loc prepared deduction statements based on what Zhang reported to it and that Zhang was the one responsible for paying her employees. In addition, the bookkeeper testified that Zhang reported tip income despite Loc's advice to her that restaurant owners were not permitted to do so.
The jury convicted Zhang of all charged offenses, and the court sentenced her to two years in county jail. This appeal followed.
DISCUSSION
I

Prejudicial Evidentiary Errors

Zhang challenges the admission in evidence of the Labor Commissioner's awards contained within the DLSE's case files, and portions of Black's and Buffington's testimony. The People argue that Zhang forfeited her claim. Notwithstanding forfeiture, the People concede that the awards should have been excluded, but argue that the admission of the awards was harmless. Furthermore, the People contend that Zhang forfeited her challenge to Black's and Buffington's testimony, the expert testimony was proper, and any erroneously admitted testimony was harmless.
We first address the admissibility of the challenged evidence, setting aside the issue of forfeiture, and conclude that the awards and Black's and Buffington's opinion testimony were improperly admitted. We then address the issues of forfeiture and ineffective assistance of counsel.
A

The Labor Commissioner's Awards Were Inadmissible

" 'A judgment in a civil action is not admissible in a subsequent criminal prosecution, although exactly the same questions are in dispute in both cases, for the reason that the parties are not the same, and different rules as to the weight of the evidence prevail.' " (People v. Barker (1938) 29 Cal.App.2d Supp. 766, 771 [compensation award by Industrial Accident Commission, a quasi-judicial body, not admissible in criminal prosecution for violating worker's compensation act]; see People v. Wheeler (1992) 4 Cal.4th 284, 300 [judgment that is offered in a subsequent action to prove the determined matters is hearsay evidence].) The rationale for the rule precluding the admission of civil judgments in a criminal case for the truth of the matters asserted in the civil judgment is that civil cases are decided on a lower standard of proof, involve different parties, and the People are required to prove each element of a criminal offense beyond a reasonable doubt. (See People v. Kovacevich (1937) 19 Cal.App.2d 335, 338.)
Here, documents entitled "Order, Decision or Award of the Labor Commissioner" were admitted in evidence and showed that Tita and Joey were entitled to wages from Zhang in the amounts of $8,551.50 and $2,087, respectively. The People assert no hearsay exception and indeed, we discern none. The jury was not instructed to consider these documents for a specified or limited purpose; rather, the jury was encouraged to consider the awards for their truth. The awards should have been excluded.
B

The Deputy Labor Commissioners Provided Improper Opinion Testimony

"As a general rule, the opinion of an expert is admissible when it is '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. . . . ' (Evid. Code, § 801, subd. (a).) Additionally, in California: 'Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.' (Evid. Code, § 805.) However, the admissibility of opinion evidence that embraces an ultimate issue in a case does not bestow upon an expert carte blanche to express any opinion he or she wishes. [Citation.] There are limits to expert testimony, not the least of which is the prohibition against admission of an expert's opinion on a question of law." (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 (Summers).) "Even if an expert's opinion does not go to a question of law, it is not admissible if it invades the province of a jury to decide a case." (Id. at p. 1183 [improper for expert to opine on whether defendant had a "nondelegable duty"]; see People v. Torres (1995) 33 Cal.App.4th 37, 45 [improper for police officer to testify on the definition of a "robbery" and "extortion" and whether the facts of the case constituted a robbery].)
"Expert opinions which invade the province of the jury are not excluded because they embrace an ultimate issue, but because they are not helpful (or perhaps too helpful). '[T]he rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. "Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates." [Citation.]' [Citations.] In other words, when an expert's opinion amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them." (Summers, supra, 69 Cal.App.4th at p. 1183.)
Finally, an expert "cannot . . . relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception . . . . [P]roffered case-specific hearsay assertions are being offered for their truth. The expert is essentially telling the jury, 'You should accept my opinion because it is reliable in light of these facts on which I rely.' " (People v. Sanchez (2016) 63 Cal.4th 665, 686; see People v. Stamps (2016) 3 Cal.App.5th 988, 996-997 [improper testimony where expert matched confiscated pills to a drug website and on that basis identified the pills as certain drugs; the website content was not independently admissible].)
With the above principles in mind, we conclude that Deputy Labor Commissioners Black and Buffington provided improper opinions on issues of law and the merits of the victims' wage claims. Black relayed the inadmissible awards evidence to the jury, including that Tita and Joey were entitled to wages of specified amounts as well as civil penalties for Zhang's refusing to pay. Black opined on numerous circumstances that would constitute a violation of wage and labor laws, such as a failure to provide meal periods. She further opined that Zhang habitually backdated checks, based on hearsay statements by J.C. and M.R., who were not trial witnesses. Throughout her testimony, Black conveyed her opinion that the victims maintained meritorious wage claims, which was exactly what the jury was supposed to decide.
Likewise, Buffington opined that Zhang had violated the minimum wage laws with respect to five different employees—Tita, Joey, Matt, Pam, and M.R. Buffington reached this opinion based on the employees' out-of-court statements, which she considered to be credible. Zhang had no opportunity to cross-examine M.R., and the jury could just as easily evaluate Tita's, Joey's, Matt's, and Pam's credibility at trial without the assistance of an expert. The wage citation showed that Zhang violated the minimum wage provisions of the Labor Code in a specified amount.
We do not attempt to comprehensively list all of the areas of improper expert testimony. Suffice to say, Black and Buffington were proxies for the Labor Commissioner and agents of the DLSE, "the state agency empowered to enforce California's wage and hour laws." (Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, 46, fn. 4.) Their opinions that the victims were entitled to wages of certain amounts had a significant likelihood of usurping the jury's role to decide that element of the charged offenses, and were inadmissible. (Downer v. Bramet (1984) 152 Cal.App.3d 837, 841 [manner in which the law should apply to particular facts is a legal question and not subject to expert opinion].)
C

Defense Counsel Was Deficient in Allowing the Award and Expert Evidence to be Admitted, and the Errors Cannot Be Deemed Harmless

Both the Sixth Amendment of the United States Constitution and article I, section 15, of the California Constitution guarantee a criminal defendant a right to the assistance of counsel. This right encompasses the right to effective assistance of counsel, without which the right to a trial itself would be "of little avail." (Powell v. Ala. (1932) 287 U.S. 45, 68-69; People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) Effective assistance of counsel means assistance which meets an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Washington); Ledesma, at p. 216.)
Generally, the failure to make objections is a matter of trial tactics which appellate courts will not second-guess. (People v. Lanphear (1980) 26 Cal.3d 814, 828.) Occasionally, however, a case arises in which there simply could be no satisfactory explanation for counsel not objecting to the proffered evidence. (See, e.g., People v. Nation (1980) 26 Cal.3d 169, 179 [failure to object to impermissibly suggestive pretrial identifications]; People v. Sundlee (1977) 70 Cal.App.3d 477, 482-483 [failure to object to hearsay evidence].)
As we have indicated ante, the awards and opinions of the deputy labor commissioners were improperly admitted in evidence. Trial counsel made a vague objection to admitting the DLSE's files during motions in limine, stating that "some of these records may kind of tap into the province of the jury's process . . . ." However, the trial court plainly did not have the exhibits before it at the time and could not make a ruling on the issue. It was incumbent on counsel to object when the exhibits and testimony were introduced, and his failure to do so caused a forfeiture. (See People v. Cowan (2010) 50 Cal.4th 401, 477 [a blanket motion in limine to exclude photographic evidence did not obviate the need to object to individual photographs as they were introduced to avoid forfeiture]; People v. Champion (1995) 9 Cal.4th 879, 925 [when there are variations between offer of proof and actual evidence, defense counsel must renew objections].) Likewise, Zhang's motion in limine to "preclude officers from testifying to statements made by witnesses being called to testify" did not reasonably alert the trial court that the deputy labor commissioners should be precluded from providing expert or opinion testimony regarding whether the victims were entitled to wages under the Labor Code. Counsel should have objected to the introduction of the awards and Black's and Buffington's opinion testimony.
We perceive no tactical advantage to Zhang in counsel's failure to object to the awards and Black's and Buffington's expert opinions. The People do not suggest any tactical reason. As defense counsel alluded to during motions in limine, the awards and expert testimony invaded the jury's role to determine whether the victims were entitled to wages, and in what amounts. The opinions of two deputy labor commissioners plus the awards were likely to be essentially conclusive that the victims were entitled to wages in specified amounts. Competent counsel would have objected to the admitted evidence.
In addition to showing counsel's performance was deficient, Zhang must also show " 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (Ledesma, supra, 43 Cal.3d at pp. 217-218, quoting from Washington, supra, 466 U.S. at p. 694.) "Reasonable probability" in this context means there is a "reasonable chance and not merely an abstract possibility" that the defendant would have obtained a more favorable result. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050-1051; People v. Wilkins (2013) 56 Cal.4th 333, 351.) As we explain post, there is a reasonable probability that Zhang would have obtained a more favorable result on counts 1, 2, 4, and 5, which required the jury to determine that Zhang took wages of a certain sum from the victims and/or that the victims were entitled to wages. However, as to the remaining counts, which involved stolen gratuities and Zhang's failure to provide itemized statements, we conclude Zhang has failed to meet the burden of establishing the probability of a different result.
Grand Theft of Labor (Counts 1 & 2)
Zhang was charged in counts 1 and 2 with grand theft of labor by false pretenses. The jury was instructed in pertinent part:
"To prove that the defendant is guilty of this crime, the People must prove that:

"1. The defendant knowingly and intentionally deceived an employee by false or fraudulent representation or pretense;

"2. The defendant did so intending to persuade the employee to let the defendant take his or her labor;

"AND

"3. The employee let the defendant take his or her labor because the employee relied on the representation or pretense. [¶]….[¶]

"For grand theft, the value of the labor taken must be more than $950.

"For petty theft, the value of the labor taken can be any value, no matter how slight."

To determine whether Zhang committed grand or petty theft, the jury was instructed with an adaptation of CALCRIM No. 1801, as follows in relevant part: "The value of services (labor) is the minimum wage for the services performed. During 2013 and 2014, the prevailing wage was set by law at $8.00 an hour for regular wages, $12.00 an hour for overtime wages and $16.00 an hour for double time wages. (Labor Code section 510(a).)" Thus, the counts of grand theft of labor required the jury to determine that Tita and Joey allowed Zhang to take from them more than $950 in valued labor, i.e., more than $950 of unpaid wages.
Based on the foregoing, we conclude the improperly admitted awards and related testimony regarding Zhang's failure to pay more than $950 in wages to Tita and Joey, had more than an abstract possibility of influencing the jury's verdict on counts 1 and 2. Indeed, the prosecutor particularly pointed the jury to the Labor Commissioner's findings as evidence that Zhang had stolen more than $950 in labor from Tita and Joey.
The People argue that any evidentiary error was harmless because the prosecutor warned the jury during closing argument not to "misuse" the hearing officer's findings, as follows:
"I also want to caution you that just because there was a judgment by the hearing officer, if you recall that it's a different standard of proof. In a criminal trial the burden of proof is beyond a reasonable doubt. So your job is to analyze the evidence before you under that burden of proof. You can't just say, well, that's what the hearing officer found so that's what I'm going to find."

The prosecutor's comments did not sufficiently alleviate the prejudicial impact of the admitted evidence because there was no proffered permissible use of the awards and they were admitted for their truth; in any event, we do not believe a reasonable juror could or would ignore the awards and expert evidence, which neatly pointed to a finding that the "$950" threshold was met. There is a substantial danger that a juror simply adopted the Labor Commissioner's findings as his or her own, and accordingly, counts 1 and 2 must be reversed.
Refusal to Pay Wages (Counts 4 & 5)
Zhang was charged in counts 4 and 5 with refusing to pay wages in violation of section 216, subdivision (a). The jury was instructed as follows in pertinent part:
"To prove that the defendant is guilty of this crime, the People must prove that:

"1. Defendant was an employer;

"2. Defendant's employee, upon having wages due and payable, made a demand to defendant for wages due and payable;

"3. Defendant willfully refused to pay employee;

"AND

"4. Defendant had the ability to pay employee."

Section 216, subdivision (a) "makes it a crime for an employer having the ability to pay, knowingly and intentionally to refuse to pay wages which he knows are due." (In re Trombley (1948) 31 Cal.2d 801, 807-808.)
Here, the awards, in combination with the experts' opinions, covered virtually every element of these offenses and left little for the jury to decide. As we have discussed, a reasonable juror would consider the Labor Commissioner's findings along with the testimony of two deputy labor commissioners as practically conclusive on the merits of the victims' wage claims. Given the substantial danger the jury simply adopted the Labor Commissioner's findings, we must reverse counts 4 and 5.
Remaining Counts: Grand Theft of Money/Gratuities (Count 3) and Failure to Provide Itemized Statements (Counts 6-9)

Zhang was charged in count 3 with grand theft by false pretense of her employees' money, in which the People were required to prove that Zhang took more than $950 of employees' gratuities. (Pen. Code, § 487, subd. (a).) In counts 6 through 9, Zhang was charged with failing to provide four of her employees with itemized statements in violation of sections 226, subdivision (a) and 226.6.
With respect to counts 3, 6, 7, 8, and 9, we conclude that the improper admission of the awards and expert opinions was not prejudicial. The awards did not include a determination on the issue of stolen gratuities or whether Zhang had provided her employees with itemized statements. Although Black testified as a general matter that owners may not normally collect gratuities and must provide itemized statements to employees, neither she nor Buffington could confirm Zhang's actual practices toward the victims during their employment. The employees consistently testified at trial about the tip pooling practice or specific instances of Zhang taking their tips, and other properly admitted evidence established Zhang's reporting of tip income. The victims also testified regarding Zhang's failures to provide them with itemized statements during their employment, which was corroborated by Zhang's bookkeeper. The jury obviously credited the victims' testimony. We are convinced that Zhang would not have obtained a more favorable result as to counts 3, 6, 7, 8, and 9 even if the challenged evidence had been properly excluded. Thus, we affirm those counts.
D

Zhang's Right of Confrontation

Zhang contends that introduction of the DLSE's "claims files and testimony" regarding J.C.'s and M.R.'s claims violated her right of confrontation. However, most of the documents in J.C.'s and M.R.'s files were not admitted in evidence; only J.C.'s release of claims against Zhang and Zhang's checks to J.C. and M.R. were admitted. Furthermore, Zhang has failed to establish that statements made by J.C. and M.R. to Black and Buffington were "testimonial" as required to implicate the Sixth Amendment's confrontation clause. (Crawford, supra, 541 U.S. at p. 68; People v. Leon (2015) 61 Cal.4th 569, 603 [primary purpose of a "testimonial" statement must pertain in some fashion to a criminal prosecution].) Accordingly, her claim fails.
II

Substantial Evidence Supports Zhang's Intent to Defraud, an Element of
Grand Theft of Money

Because we reverse counts 1, 2, 4, and 5, we have no need to discuss Zhang's substantial evidence challenge to those counts. However, we address Zhang's contention that substantial evidence did not support her intent to defraud employees of their gratuities, an element of grand theft by false pretenses as charged in count 3. Specifically, Zhang argues that there is no evidence she was deceiving the servers about the tip pooling practice because she openly took a 10 percent share of gratuities as the head chef.
The crime of theft by false pretenses requires only that " '(1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation.' " (People v. Williams (2013) 57 Cal.4th 776, 787; People v. Ashley (1954) 42 Cal.2d 246, 259.)
" 'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.]' [Citations.] All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence." (People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.) "This standard applies whether direct or circumstantial evidence is involved." (Id. at p. 227.)
We conclude there is substantial evidence that Zhang committed grand theft of employees' gratuities by false pretenses with the requisite intent to defraud. Zhang told her server-employees they must place 10 percent of their tips in an envelope and the money would be fairly distributed among the "kitchen" workers. The servers complied with the practice in reliance on Zhang's representation. Even assuming the servers suspected Zhang was taking some of the tips as the chef, there were other kitchen workers besides Zhang. No employee knew that Zhang was not giving any other kitchen worker some share of the tips. Indeed, the record supports that the servers did not know exactly what happened to the 10 percent amount after it was placed in the envelope or turned over to Zhang.
Moreover, Zhang's intent to defraud is amply supported by the record. She siphoned off tips despite being advised by her bookkeeper that she could not earn tips as an owner. She reported tip income for every pay period between November 2013 and March 2014, equaling over $8,200 in tips taken from various servers; during the same time frame, she claimed not to have sufficient funds to pay her employees their promised wages. Her personal benefit from the fraudulent scheme supports an intent to defraud. (See People v. Jones (1950) 36 Cal.2d 373, 381 [fraudulently induced transfer of funds "redounded directly to defendant's benefit," thus supporting an intent to defraud].)
III

The Court Did Not Err in Its Jury Instruction on Grand Theft by False Pretenses

In addition to providing a legally correct instruction on grand theft by false pretenses based on CALCRIM No. 1804, the court gave a pinpoint instruction to the jury at the People's request, which stated: "An intent to restore property to an employee is not a defense. Grand theft by false pretenses is complete when the labor or money has been obtained by such means[, and] is not negated by subsequent efforts to repay it." Defense counsel did not object to the instruction.
Zhang contends the pinpoint instruction was an incorrect or misleading statement of the law and created a strong likelihood that the jury would disregard evidence of her restitution attempts to negate intent to defraud. Because defense counsel failed to object to the instruction, the issue is forfeited. (People v. Souza (2012) 54 Cal.4th 90, 120.) In any event, assuming the instruction is misleading, its inclusion was harmless as to count 3. Zhang has failed to point to any evidence in the record that she intended or offered to repay employees their gratuities; to the contrary, Zhang's defense at trial was that her employees had received all of their entitled gratuities and she was merely reporting the income for tax purposes because her employees refused to report the income. Accordingly, the instruction had no prejudicial impact with respect to whether she stole employees' gratuities.
IV

Sentencing

Because we reverse counts 1, 2, 4, and 5, we have no need to discuss the sentencing issues raised by Zhang, including whether the imposed sentences on the counts for refusal to pay wages should have been stayed under Penal Code section 654 and whether the court should have granted probation. The case must be remanded for resentencing. (People v. Roach (2016) 247 Cal.App.4th 178, 185 [guidelines for resentencing when a principal term has been reversed on appeal].)
V

Clerical Error in Minute Order and Abstract of Judgment

Zhang lastly contends the trial court's minute order and abstract of judgment, which state a restitution fine of $600, must be corrected to reflect the court's orally ordered restitution fine of $330. The People appropriately concede the error. (People v. Jones (2012) 54 Cal.4th 1, 89 ["When an abstract of judgment does not reflect the actual sentence imposed in the trial judge's verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties."].) The record is not clear, however, whether the restitution fine was based in part on the counts we have reversed. On remand, the trial court must reconsider the propriety of the restitution fine and enter a corrected abstract of judgment.
DISPOSITION
Zhang's convictions on counts 1, 2, 4, and 5 are reversed. Her remaining convictions are affirmed. The matter is remanded to the trial court for resentencing and
redetermination of restitution as needed. The court is directed to prepare an amended abstract of judgment, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.



McCONNELL, P. J.

WE CONCUR:




BENKE, J.




O'ROURKE, J.