P. v. Ristau

Filed 6/28/06 P. v. Ristau CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

After being indicted for various securities and tax violations, defendant Steven Allan Ristau was found guilty by a jury and sentenced to state prison. On appeal he contends, among other things, that the trial court committed instructional error by failing to tell the jury that scienter is an element of the offense of selling unregistered securities, by refusing to instruct on mistake of fact as a defense to securities fraud and tax evasion, and by imposing an aggravated term on the basis of facts not found by the jury. In an earlier decision we found error in the latter respect only, and ordered a remand for sentencing purposes. The Supreme Court granted review pending its decision in another case raising the question of the mental state required for a conviction of unlawful sale of unregistered securities. The court has now remanded this matter to us with instructions to vacate our previous decision and reconsider the cause in light of the decision in that case, People v. Salas (2006) 37 Cal.4th 967 (Salas). Having done so, we conclude that (1) Salas entitled defendant to raise an affirmative defense of good faith belief in the exempt status of the sales at issue, but (2) the absence of instructions on that defense does not require reversal because it was harmless beyond a reasonable doubt, in that no reasonable juror could conclude that defendant acted without criminal knowledge or negligence in selling the securities at issue.

We also note that our previous treatment of the sentencing issues cannot be reconciled with the Supreme Court's intervening decision in People v. Black (2005) 35 Cal.4th 1238, 1244 (Black). Accordingly, we will affirm the judgment in its entirety.

Factual And Procedural Background

It is undisputed that defendant founded PacketSwitch.com (PacketSwitch), a California corporation, in or around February 1999. At that time defendant was the chief executive officer, chief financial officer, and sole director of PacketSwitch. For most of its corporate life, PacketSwitch operated without a board of directors; defendant alone ran the company and, for most of this time, had sole authority over its bank accounts. Investors supplied the company's only revenue.

PacketSwitch stock was not sold publicly and was not registered with federal or state securities regulators. Shares were sold privately to some 700 to 900 purchasers. Each purchaser signed a form attesting that he or she was an â€