People v. Selivanov
B252894M
| Cal. Ct. App. | Dec 13, 2016Background
- Yevgeny Selivanov and Tatyana Berkovich founded and operated Ivy Academia (a charter school). A LAUSD audit/investigation led to a 33-count information charging them with embezzlement, misappropriation of public moneys, false accounting, money laundering, and tax offenses. They were tried jointly; the jury convicted both on multiple counts.
- The trial court later granted defendants’ new-trial motions as to all section 424 (misappropriation of public moneys) convictions, concluding the court’s instruction improperly removed the element of "public moneys" from the jury. The People appealed that order.
- At sentencing the trial court made a judicial finding that the embezzled funds were “public funds” under Penal Code §514 (which turns embezzlement of public funds into a felony regardless of value). Defendants argued that finding violated Apprendi/Alleyne. The appellate court found the judicial public‑funds finding should have been submitted to the jury but that the error was harmless beyond a reasonable doubt.
- The appellate court affirmed the convictions in most respects, rejected defendants’ principal evidentiary and instructional challenges (including sufficiency for the AmEx embezzlement count, unanimity, claim‑of‑right on several embezzlement counts, and corporate/personal tax convictions).
- The court ordered modifications to restitution: it struck Selivanov’s joint‑and‑several liability for $22,396.60 of restitution tied to charges on Berkovich’s AmEx card and reduced Selivanov’s Ivy Academia restitution total accordingly. Otherwise the judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for AmEx embezzlement (count 2) | Prosecution: circumstantial evidence (questionable charges, bookkeeping discrepancies, defendants’ control and statements) supports fraudulent intent and lack of authority | Defendants: charges were authorized/for school purposes or approved by board; no fraudulent intent | Court: Evidence was sufficient; reasonable jury could infer fraudulent intent and lack of authority — conviction affirmed |
| Need for unanimity instruction on multiple AmEx charges | People: presented charges as one continuous course of conduct; no election necessary | Defendants: jury could have convicted based on different discrete acts; unanimity instruction required | Court: No unanimity error; continuous‑course‑of‑conduct and common defense meant unanimity instruction not required |
| Jury finding required for “public funds” under §514 (Apprendi/Alleyne issue) | People: public‑funds finding can be made by court at sentencing; did not increase exposure beyond trial sentence | Defendants: judicial finding increased mandatory minimum/changed wobbler to felony — must be found by jury beyond reasonable doubt | Court: The court’s §514 finding implicated Alleyne (it removed the misdemeanor sentencing option) and should have been submitted to jury, but error was harmless beyond a reasonable doubt because jury would have found funds were public |
| Claim‑of‑right instruction for transfers to defendants’ entities | Defendants: they had a good‑faith claim (deferred salaries/owed amounts) so instruction required | People: evidence did not show an honestly held, specific claim to the exact funds; defense not supported | Court: Court did not err prejudicially. Good‑faith instruction was given; jury rejected defense. No reversal |
| Admissibility of AJFK/EGeneration QuickBooks (tax counts) | People: QuickBooks admissible (used by experts / business records / non‑hearsay or authorized statements) | Defendants: lack of foundation; printouts are hearsay not shown to be business records | Court: Although business‑records foundation was weak, documents were admissible either as non‑hearsay (showing falsity) or under authorized‑statements exception; tax convictions affirmed |
| Restitution joint and several liability for AmEx charges on Berkovich’s card | People: Selivanov controlled finances and instituted payments, so jointly liable | Defendants: only the person who caused the loss should be liable for that portion | Court: Trial court abused discretion holding Selivanov jointly and severally liable for Berkovich’s $22,396.60; ordered restitution modified so Berkovich alone owes that amount |
| Trial court’s grant of new trial on §424 counts (instructional error) | People (on appeal): charter schools are subject to public‑funds statutes; instruction was correct as a matter of law | Defendants: instruction improperly took element from jury | Court: People forfeited argument on appeal; trial court granted new trial because it concluded it had improperly removed the public‑moneys element from jury — order affirmed (People may retry) |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact increasing penalty beyond prescribed statutory maximum must be submitted to a jury)
- Alleyne v. United States, 570 U.S. 99 (2013) (facts that increase mandatory minimum sentence are elements and must be found by jury beyond reasonable doubt)
- Blakely v. Washington, 542 U.S. 296 (2004) (statutory maximum for Apprendi purposes is the maximum a judge may impose based only on jury verdict or defendant admissions)
- People v. Tufunga, 21 Cal.4th 935 (1999) (claim‑of‑right defense requires evidence of honest belief in right to property; instruction given only when supported)
- People v. Stanfill, 76 Cal.App.4th 1137 (1999) (embezzlement treated as theft; value thresholds and wobbler analysis)
- People v. Redondo, 19 Cal.App.4th 1428 (1993) (public funds concept and its impact on embezzlement sentencing)