People v. Selivanov, 5 Cal. App. 5th 726

Background

Yevgeny Selivanov and Tatyana Berkovich founded and ran Ivy Academia, a charter school; LAUSD audited the school and a subsequent investigation led to criminal charges for complex financial transactions.
A 33-count information charged both with misappropriation of public moneys (§ 424) and multiple embezzlement counts (§ 504, some alleging “public funds” under § 514); Selivanov faced additional money‑laundering and tax counts.
At trial the jury convicted both of felony embezzlement (count 2 for American Express card charges) and other counts; the court later granted defendants’ new‑trial motions as to the § 424 misappropriation counts on the ground the jury was improperly instructed that the funds were public moneys.
At sentencing the court (over objection) found the embezzled funds were “public funds” under § 514, eliminating misdemeanor sentencing exposure; defendants appealed and the People cross‑appealed the new‑trial grant.
The appellate court affirmed convictions (finding the § 514 sentencing‑fact error harmless beyond a reasonable doubt), upheld other rulings, but modified restitution: it struck Selivanov’s joint‑and‑several liability for $22,396.60 tied to Berkovich’s AMEX charges and directed corrected restitution amounts.

Issues

Issue	People’s Argument	Defendants’ Argument	Held
Whether evidence supported embezzlement based on American Express charges (count 2)	Charges were public‑fund expenditures not for school purposes; circumstantial evidence established fraudulent intent and lack of authority	Charges were legitimate school expenditures or authorized by board/LAUSD; insufficient proof of fraudulent intent or lack of authority	Substantial evidence supported embezzlement convictions; jury could infer fraudulent intent and lack of authority
Whether court’s failure to give a unanimity instruction on count 2 was reversible error	Single course‑of‑conduct theory justified no unanimity instruction	Absence of unanimity instruction prejudiced defendants	No error: parties and proof framed the charges as a single continuing course of conduct; unanimity instruction not required
Whether sentencing judge’s finding that embezzled funds were “public funds” (§ 514) violated Apprendi/Alleyne	Finding didn’t increase exposure because felony punishment was alleged at trial; harmless if erroneous	Judicial finding increased mandatory minimum by removing wobbler discretion; should have been jury finding	Judicial § 514 finding implicated Alleyne (must be jury‑found) but error was harmless beyond a reasonable doubt because jury necessarily would have found funds were public
Whether trial court erred by denying claim‑of‑right instruction for transfers to defendants’ business (EGeneration)	Evidence did not support subjective good‑faith claim of right; court’s good‑faith and mistake instructions were sufficient	Claim‑of‑right was supported by records showing due‑to accounts and deferred salary; omission deprived defense	Court did not err prejudicially: evidence could support claim but jury rejected good‑faith element under other properly given instructions

Key Cases Cited

Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing statutory maximum must be submitted to a jury)
Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts that increase mandatory minimum must be found by a jury)
People v. Redondo, 19 Cal. App. 4th 1428 (1993) (discussion of embezzlement of public funds and available pecuniary resources)
People v. Barnett, 17 Cal. 4th 1044 (1998) (claim‑of‑right / good‑faith belief as defense to theft/embezzlement)
People v. Tufunga, 21 Cal. 4th 935 (1999) (claim‑of‑right instruction required only when evidence supports subjective belief)
People v. Stanfill, 76 Cal. App. 4th 1137 (1999) (embezzlement treated as theft; felony/misdemeanor depends on value unless public funds)
People v. Leon, 124 Cal. App. 4th 620 (2004) (restitution: defendant liable only for losses caused by crimes of which he was convicted)