People v. CannonPeople v. Cannon
A jury convicted defendant Curtis Paul Cannon of two counts of felony perjury, one count of felony misappropriating public funds, and one count of felony grand theft by embezzlement of public funds. On appeal, Cannon argues: (1) insufficient evidence supports the jury‘s findings that the money at issue in his misappropriation and embezzlement convictions qualified as public funds; (2) the trial court erred when it instructed the jury on the definition of public funds; (3) the court abused its discretion when it admitted evidence in violation of his attorney-client privilege; (4) the People were required to charge one of his counts of perjury as a misdemeanor under the rule announced in In re Williamson (1954) 43 Cal.2d 651 (Willamson rule); and (5) insufficient evidence supports the jury‘s findings that he acted with the intent to deceive for purposes of his perjury convictions. We reject each of Cannon‘s arguments and affirm.
FACTUAL BACKGROUND
1. Evidence related to the misappropriation and embezzlement counts
1.1. Aero‘s cooperative agreement with NASA
In 2006, the Aerospace Education Research and Operations Institute (Aero) was formed as a nonprofit corporation in Palmdale. Aero later entered into a cooperative agreement with NASA (Cooperative Agreement), through which NASA agreed to provide Aero funding for, among other things, science outreach programs for schools, universities, and other educational institutions. NASA was Aero‘s sole source of funding.
Under the Cooperative Agreement, Aero received funding from NASA on a per project basis. Each month, Aero would
The Cooperative Agreement required Aero to produce quarterly and annual financial reports and send copies of the reports to NASA. For the quarterly reports, Aero was required to include “current estimates of the cash requirements for each of the four quarters following the quarter being reported.” For the annual reports, Aero was required to “document the disposition” of funds distributed to the organization under the Cooperative Agreement during the previous fiscal year and provide a “narrative report” summarizing “accomplishments to the goals outlined.”
The Cooperative Agreement also stated that expenditures under the agreement were “subject to inspection and audit by representatives of the Federal government during the period of the agreement and three ... years thereafter.” Aero was required to maintain records “in sufficient detail to evidence details [of] prudent management and to facilitate the preparation of the required reports for determining whether expenditures are being made for the purposes for which the funds were granted.”
NASA‘s cooperative agreements, including the one in this case, are governed by provisions of the Code of Federal Regulations. For instance, one applicable provision of the federal regulations requires a contracting organization‘s costs under a cooperative agreement to be “necessary and reasonable for the performance of the Federal award and be allocable thereto under these principles.” (
Throughout its relationship with NASA, Aero maintained a surplus of funds in its own bank accounts. Those surplus funds consisted of money that Aero over drafted from the HHS account that NASA funded—i.e., money that was left over after Aero paid its direct project costs and its indirect operating costs under the Cooperative Agreement. NASA did not have access to, or control over, Aero‘s bank accounts.
1.2. Alleged misuse of funds held in Aero‘s bank accounts
In the summer of 2017, Cannon was appointed as Aero‘s executive director, around the same time that the organization‘s former executive directors, Kimberly Shaw and Susan Miller, were charged with crimes stemming from alleged financial misconduct that they committed while working for Aero.
In early October 2017, Shaw‘s attorney sent Cannon a letter asking Aero to indemnify Shaw‘s defense in her criminal case. The attorney claimed that Aero was required to indemnify Shaw because she was an agent for the organization “at all times relevant to the criminal complaint, acted at all times in good faith and in a manner reasonabl[y] believed to be in the best interests of [Aero], and had no reasonable cause to believe that any of her conduct was unlawful.”
According to Aero‘s bylaws, the organization‘s board of directors needed to approve any indemnification request made by its employees or officers. Around late October 2017, Cannon authorized Aero to indemnify Shaw‘s defense. When Cannon made that decision, Aero had at least one other voting board member. Cannon did not consult with that board member (or any
Around the same time that Cannon decided to indemnify Shaw, he and Amber Abel, Aero‘s business manager, opened a new bank account in Aero‘s name through Merrill Lynch. Cannon and Abel transferred over $2 million from Aero‘s other bank accounts to the Merrill Lynch account. Cannon did not obtain approval from Aero‘s board of directors before doing so.
In late 2017, Cannon paid himself and Abel $25,000 bonuses. In early 2018, his last month working for Aero, Cannon paid himself a severance package worth over $60,000. Cannon did not obtain approval from Aero‘s board of directors before issuing any of those payments.
The Cooperative Agreement expired around March 2018. Aero had over $2 million in its bank accounts at that time. Shortly before the Cooperative Agreement terminated, one of NASA‘s procurement officers sent a letter to Aero, asking the organization to return “all unused funds” that it had withdrawn under the Cooperative Agreement “in accordance with
Around August 2018, the trial court in Shaw‘s criminal case issued a temporary restraining order freezing Aero‘s bank accounts.
In May 2019, one of NASA‘s contract officers sent a demand letter to Aero. The letter stated that NASA was aware that Aero was being investigated “regarding irregularities with the expenditure of federal funds” and that the trial court in Shaw‘s criminal case froze Aero‘s bank accounts. The letter also stated that Aero owed the federal government over $3 million “in cost disallowances” that were incurred under the Cooperative
Later that month, one of Aero‘s attorneys responded to NASA‘s demand letter. Aero‘s attorney argued that Aero owned the funds at issue in NASA‘s demand letter. Aero‘s attorney asked NASA whether it took the position that it owned the surplus funds that Aero held in its own bank accounts.
In July 2019, NASA responded to the letter from Aero‘s attorney. NASA stated that it believed its initial demand letter adequately responded to the attorney‘s questions, and it stated that it “did not take a position on ownership of the particular funds under [the court‘s] temporary restraining order.”
2. Evidence related to the perjury counts
2.1. Cannon‘s sworn declarations filed in court
In February 2019, Cannon filed a sworn declaration in Shaw‘s case, through which he sought to lift the restraining order freezing Aero‘s bank accounts. Cannon testified that he was aware that the prosecution was “concern[ed] that [Aero‘s] agreement to indemnify Ms. Shaw was not ratified by [Aero‘s] board.” Cannon claimed that he “was authorized to make [that] decision [himself], as there were no other Board members at the time.”
In December 2020, Cannon filed another sworn declaration in Shaw‘s case. Cannon stated that he received a letter from Shaw‘s defense attorney requesting that Aero indemnify Shaw for the cost of her criminal defense. Cannon claimed, “After receiving this letter I consulted with Karl Berger, who was [Aero‘s] attorney at the time. As a result of this consultation, I determined that [Aero] had a legal obligation to indemnify Ms. Shaw for the cost of her defense.” Cannon also declared,
2.2. Cannon‘s financial declarations
In 2017, Aero paid Cannon over $130,000 in compensation, including a salary of about $90,000, nearly $22,000 in “1099 income,” and the $25,000 bonus. In 2018, Cannon received nearly $69,000 of income from Aero, including the more-than $60,000 severance package.
In late February 2018, Cannon began working for the City of Palmdale as the city‘s economic development manager. In that role, Cannon oversaw Palmdale‘s contracts with Aero, including Aero‘s contract to lease space on city property.
When Cannon was hired by Palmdale, the city maintained a conflict-of-interest policy that applied to its government officials, including its economic development manager. Under that policy, Cannon was required to regularly file sworn statements disclosing his reportable financial interests, including any income he received “from persons and business entities having an interest in real property in the jurisdiction.” Palmdale provided each new government official with a copy of an instruction manual explaining how to disclose reportable financial interests when assuming, maintaining, and leaving office.
Around the time he started working for Palmdale, Cannon filed a Form 700 “assuming office statement,” which required him to report “investments, interests in real property, and business
In February 2019, Cannon filed a Form 700 “annual statement,” in which he was required to disclose any reportable financial interests from the previous calendar year. Cannon checked a box stating that he had no reportable financial interests for the period between early January and late December 2018.
In December 2019, Cannon filed a Form 700 “leaving office statement.” Cannon stated that he was leaving his position as Palmdale‘s economic development manager in early January 2020. Cannon checked a box on that form stating that he had no reportable financial interests from early January 2019 through early January 2020.
Shortly after Cannon resigned as Palmdale‘s economic development manager, a deputy city attorney for Palmdale began investigating Aero. During that investigation, the attorney discovered one of Aero‘s tax forms, which showed Cannon received around $90,000 in salary from Aero in 2017. The attorney reported Cannon to the Fair Political Practices Commission (FPPC) because Cannon had failed to disclose his 2017 salary from Aero on his Form 700 when he started working for Palmdale in early 2018.
On April 2, 2020, the FPPC sent Cannon a letter notifying him that someone had filed a complaint alleging that he violated
On April 6, 2020, Cannon sent an e-mail to the FPPC, where he acknowledged that he failed to disclose his 2017 salary from Aero in the Form 700 that he filed when he assumed office as Palmdale‘s economic development manager. Cannon claimed that he failed to disclose his salary because he misunderstood the requirements for filing a Form 700 when he started working for the city. Cannon believed that he was only required to disclose income that he was receiving at the time he filed the form. Cannon pointed out that several Palmdale officials were aware that he worked for Aero when he applied for his position with the City, and he claimed that he did not intend to deceive anyone by omitting the income he received from Aero on his original Form 700. Cannon did not, however, acknowledge that he received nearly $69,000 of income from Aero in February 2018, before he started working for Palmdale.
The same day that he contacted the FPPC, Cannon filed an amended Form 700 for when he assumed office with Palmdale. Cannon attached to that document a “Schedule C” form, on which he reported that he received income from Aero during the 12-month period before he began working for Palmdale. Cannon checked a box on that form stating that he received between only $10,000 and $100,000 of income from Aero during that period.
The FPPC and Cannon later reached a stipulated disposition, through which the FPPC fined Cannon $100 for failing to disclose on his Form 700 the income he received from Aero in 2017.
The People charged Cannon with four counts of felony perjury (
A jury convicted Cannon of two counts of perjury (counts 2 & 7), one count of misappropriation of public funds (count 3), and grand theft by embezzlement of public funds (count 8). The court imposed a total sentence of four years and eight months in prison. The court suspended execution of the sentence and placed Cannon on two years of formal probation.
Cannon appeals.
1. Sufficiency of the evidence to support the jury‘s findings that the money at issue in counts 3 and 8 qualifies as public funds
Cannon first contends that insufficient evidence supports the jury‘s findings that he misappropriated and embezzled public funds in counts 3 and 8, respectively. Cannon focuses only on whether the People proved that the money he misappropriated or embezzled belonged to a government or public agency. He does not challenge the sufficiency of the evidence to support any other element of his convictions in counts 3 and 8. As we explain, substantial evidence supports the jury‘s findings that the money Cannon misappropriated and embezzled belonged to a government agency.
1.1. Applicable law and standard of review
“Embezzlement is the fraudulent appropriation of property by a person to whom it has been [e]ntrusted.” (
We review a jury‘s findings supporting a conviction for substantial evidence. We review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Wilson (2008) 44 Cal.4th 758, 806.) We make all inferences in support of the judgment that the jury reasonably could have found from the evidence. (Ibid.) We do not reweigh the evidence or reevaluate the credibility of witnesses. (People v. Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg).) ” ’ “If the circumstances reasonably justify the trier of fact‘s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 508.)
1.2. Analysis
The money at issue in counts 3 and 8 is the surplus money that Aero held in its bank accounts and which Cannon used to pay $25,000 bonuses to himself and other Aero employees around late 2017 and more than $60,000 as severance to himself around early 2018. Aero received that money from NASA through the Cooperative Agreement. That money is what was left over after Aero paid the direct costs for projects that NASA approved under the Cooperative Agreement as well as Aero‘s indirect costs, such as employee salaries and other operating costs.
Cannon contends that insufficient evidence supports the jury‘s findings that the money at issue constitutes public funds because Aero had sole possession of, and access to, that money
The People, on the other hand, argue that traditional indicators of property ownership are not the proper criteria for determining whether money constitutes public funds under the misappropriation and embezzlement statutes. Instead, the People contend that we should follow People v. Johnson (2012) 209 Cal.App.4th 800 (Johnson), which looked at the way in which money that a government or public agency gives to an outside entity is received, monitored, and controlled to determine whether that money continues to qualify as public funds once it has been disbursed by the government or public agency. (See id. at pp. 812–815.) We agree that Johnson is instructive here.
In Johnson, the defendants operated a children‘s group home licensed by California and funded by a mix of federal, state, and local agencies. (Johnson, supra, 209 Cal.App.4th at pp. 803–804.) The defendants were charged with, among other crimes, misappropriating public money under
The appellate court in Johnson reversed. (Johnson, supra, 209 Cal.App.4th at p. 815.) The court observed that the proper criteria for determining whether money belongs to a government or public agency and, therefore, constitutes public funds, is not ” ‘[u]ltimate ownership’ ” of the money, but rather ” ‘[t]he official character in which the money[] [is] received or held.” (Id. at p. 809, quoting People v. Griffin (1959) 170 Cal.App.2d 358, 363 (Griffin).) The court found “persuasive the analysis and reasoning” of federal decisions interpreting a federal theft of government property statute. (Johnson, at p. 812.) Those cases held that money belongs to the government, even after it is disbursed to another entity, if the government “has ‘title to, possession of, or control over’ the funds at issue. [Citations.] This is so even when the funds are commingled with nonfederal funds, as long as the government ’ “exercises supervision and control over the funds and their ultimate use.” ’ ” (Ibid., citing, among others, U.S. v. Kranovich (9th Cir. 2005) 401 F.3d 1107, 1113; U.S. v. Johnson (9th Cir. 1979) 596 F.2d 842, 846; U.S. v. Von Stephens (9th Cir. 1985) 774 F.2d 1411, 1413.)
The court in Johnson concluded that the money transferred to the defendants’ group home constituted public funds because
Applying the reasoning in Johnson here, substantial evidence supports the jury‘s findings that the money that Cannon misappropriated and embezzled qualifies as public funds. To be sure, Aero retained the money it received from NASA in bank accounts that Aero solely owned and operated. But as Johnson makes clear, the fact that a government agency relinquishes possession of the contested money does not, without more, establish that the money no longer constitutes public funds. (See Johnson, supra, 209 Cal.App.4th at pp. 810–815.) Rather, the relevant factors also include the way the money is distributed, monitored, and otherwise controlled by the government agency to determine whether it still constitutes public funds. (See id. at pp. 812–815.)
The Cooperative Agreement also required Aero regularly to account for the money that it received from NASA. Aero was required to provide NASA with quarterly and annual financial reports. For the annual reports, Aero had to “document the disposition” of any funds it received from NASA and describe how it was using those funds to accomplish the goals of the Cooperative Agreement. The agreement also stated that Aero‘s use of the funds it received from NASA was subject to inspection and audits by the federal government, and Aero was required to maintain detailed financial records to enable the federal government to “determin[e] whether expenditures are being made for the purposes for which the funds were granted.” As Johnson explained, this type of oversight by the government agency supplying the contested money supports a finding that such money constitutes public funds. (See Johnson, supra, 209 Cal.App.4th at pp. 813–815.)
All this evidence supports a finding that the money Aero received from NASA, including the surplus funds that Aero maintained in its own bank accounts, was money belonging to a public agency. (See Johnson, supra, 209 Cal.App.4th at pp. 814–815.) Cannon does not dispute that, as Aero‘s executive director, he was responsible for maintaining, safekeeping, and disbursing that money. (See
2. Instructional error regarding the definition of public funds for count 3
Cannon next contends that the trial court erred when it instructed the jury on the elements of his conviction in count 3 for misappropriating public funds. Specifically, Cannon argues that the court provided several erroneous special instructions defining public funds. As we explain, Cannon has not shown that the court prejudicially erred when it instructed on the definition of public funds.
2.1. Standard of review for instructional error claims
We review claims of instructional error de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) We independently review the instruction‘s language and evaluate whether it accurately states
2.2. Relevant background
Before trial, the People filed proposed jury instructions. The People asked the trial court to give the portion of CALCRIM No. 2765 corresponding to
The People asked the trial court to add over 20 special instructions to CALCRIM No. 2765, including an instruction defining the term ” ‘without authority of law’ ” to include “violations of ‘nonpenal’ laws and regulations,” instructions identifying and explaining the laws governing nonprofit corporations, and instructions explaining provisions of the Code of Federal Regulations governing cooperative agreements between a federal agency and a private organization, including how funds provided by the federal agency must be managed.
The People also asked the trial court to give the following special instructions explaining how to determine whether funds belong to a public or government agency under
Finally, Cannon objected to the proposed instructions addressing rules and regulations governing the operation of nonprofit corporations. Cannon did not dispute that many of those instructions correctly stated the law. Rather, Cannon argued that they likely would confuse the jury or were irrelevant because none of the issues in the case concerned whether he followed the rules and regulations governing nonprofit corporations.
Relevant here, the trial court instructed the jury with the following portion of CALCRIM No. 2765: “The defendant is charged in Counts 3, 4 and 5 with misappropriating public money in violation of
The trial court also gave CALCRIM No. 2765‘s definition of public money: “The term public money includes all funds, bonds, and evidence of indebtedness received or held by state, county, district, city, town, or public agency officers in their official capacity. It also includes money received from selling bonds or other evidence of indebtedness authorized by the legislative body of any city, county, district, or public agency.”
The trial court gave the following special instructions: (1) “In determining whether funds are public moneys[,] the proper criterion is the official character in which the moneys are received or held. Ultimate ownership is not a proper criterion“; (2) “The term ‘without authority of law’ specifically includes violations of ‘nonpenal’ laws and regulations“; and (3) “If the government, federal or state, maintains some control over the use of the funds, then the funds are considered public moneys.” The court also gave several special instructions addressing the rules and laws governing the operation of nonprofit corporations, including an instruction stating that the “board of directors for a non-profit corporation shall review and approve the compensation, including benefits, of the president or chief executive office[r].”
Cannon first contends that the trial court erred by instructing the jury that ultimate ownership is not a proper criterion for determining when money disbursed by a government agency and held by a nonprofit organization constitutes public funds. According to Cannon, this instruction allowed the jury to find that the money at issue in count 3 constituted public funds so long as it belonged to NASA at some point in the past, even if Aero owned that money outright when Cannon used it to pay himself and other employees unauthorized bonuses and severance packages. This argument lacks merit.
As other cases have explained, ultimate ownership of money is not the proper criterion for determining whether it constitutes public funds under
Cannon next contends that the trial court erred when it instructed the jury that money is considered public funds if the
As we discussed above, the People presented ample evidence to support a finding that NASA retained sufficient control and supervision over the money it gave to Aero, including the surplus funds that Aero maintained in its own bank accounts, to qualify as public funds under
Cannon also argues that the trial court erroneously instructed the jury that even if the money at issue in this case was wholly owned by Aero, that money would still constitute public funds if the People proved that Cannon failed to follow “appropriate corporate formalities,” such as requiring the approval of Aero‘s board of directors, before using that money to pay himself and others bonuses and severance packages. To support this argument, Cannon points to several of the court‘s instructions addressing the rules and laws governing the operation of nonprofit corporations. This argument is misguided.
To convict a defendant of misappropriating public funds under
Finally, in a parenthetical statement and two footnotes included in his opening brief, Cannon notes that he objected to the trial court‘s instructions defining public funds for purposes of
In his opening brief, Cannon does not provide any legal analysis to support this argument, nor does he cite any legal authority to support it. In his reply brief, however, Cannon devotes several pages of discussion to this argument. We decline to consider this argument. Cannon has waived it by failing to develop it in his opening brief (In re S.C. (2006) 138 Cal.App.4th 396, 408), and to the extent Cannon attempts to develop this argument in his reply brief, that argument is untimely (City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1318).
3. The trial court‘s admission of statements covered by the attorney-client privilege
Cannon next argues that the trial court abused its discretion when it found he waived the attorney-client privilege and admitted evidence of several of his communications with Aero‘s former attorney, Karl Berger. As we explain, the court correctly found Cannon waived the attorney-client privilege for evidence concerning one set of his communications with Berger. To the extent the court erred in admitting evidence of the second set of communications with Berger, any error was harmless.
3.1. Applicable law and standard of review
The attorney-client privilege protects confidential communications between a client and his or her attorney made during the attorney-client relationship. (Guardian Storage Centers, LLC v. Simpson (2026) 119 Cal.App.5th 509, 522.) The privilege confers on the client a right to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and the lawyer. (Ibid.; see
The holder of the attorney-client privilege may also waive the privilege by placing the contents of the confidential communication at issue in the case. (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 604.) Where privileged information “goes to the heart” of the claim asserted by the party invoking the privilege, “fundamental fairness requires that [the privileged communication] be disclosed for the litigation to proceed.” (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 292.) For instance, “the deliberate injection of the advice of counsel into a case waives the attorney-client privilege as to communications and documents relating to the
We review a trial court‘s determination about whether a privilege applies for abuse of discretion. (Kirchmeyer v. Phillips (2016) 245 Cal.App.4th 1394, 1402.) We review the trial court‘s factual findings supporting its determination for substantial evidence. (McDermott, supra, 10 Cal.App.5th at p. 1102.)
3.2. Relevant background
In his December 2020 declaration, Cannon stated, among other things, that he consulted with Berger after receiving the letter from Shaw‘s attorney asking Aero to indemnify her defense. Cannon also stated that, based on his conversation with Berger, he determined that Aero was legally obligated to indemnify Shaw.
During his opening statement at trial in this case, Cannon‘s attorney addressed count 7, which charged Cannon with falsely stating in a sworn declaration that he was authorized to indemnify Shaw. Relevant here, defense counsel stated, “by the way, the evidence will show there were attorneys working for Aero at that point. And I can‘t go into the conversation that Mr. Cannon had with the requisite attorney because it‘s subject to attorney-client privilege, but I will tell you the evidence will be clear that after consulting with that attorney, Mr. Cannon said, to himself—.” The prosecutor objected to defense counsel‘s statement, which the trial court overruled. Defense counsel continued to state that Cannon believed he was authorized to indemnify Shaw because he thought that he was Aero‘s sole board member, and that Aero was otherwise legally obligated to indemnify Shaw‘s legal fees. Even if Cannon was ultimately wrong in deciding to indemnify
During trial, the People sought to introduce Berger‘s testimony about whether Cannon sought his legal advice concerning Cannon‘s decision to indemnify Shaw. The prosecutor argued that Cannon had waived the attorney-client privilege with respect to his communications with Berger on that topic by raising an “advice of counsel” defense during his opening statement. The prosecutor pointed to defense counsel‘s opening statement, in which he suggested to the jury that Cannon believed he was legally authorized to indemnify Shaw based on his conversations with Berger.
Cannon objected to allowing Berger to testify about any conversations they had about whether Aero should indemnify Shaw, arguing those conversations were protected by the attorney-client privilege. After conducting an in camera review of Berger‘s records and reviewing briefs submitted by both parties, the trial court granted the People‘s request to allow Berger to testify.
The court found that although there was an attorney-client relationship between Cannon and Berger, Cannon waived the attorney-client privilege with respect to his conversations with Berger concerning whether Aero should indemnify Shaw. Specifically, the court found that by publicly filing a sworn affidavit in which he claimed that he decided to indemnify Shaw based on Berger‘s legal advice, and by referencing that alleged legal advice as a basis for his defense to count 7 during his opening statement, Cannon placed the content of his conversation with Berger at issue in this case.
Berger testified as part of the People‘s case-in-chief. The prosecutor asked Berger whether he found anything in his files concerning his representation of Aero “related to the issue of indemnification of Kim Shaw.” Berger responded, “I don‘t believe I found anything related to the indemnification of Kim Shaw.” The prosecutor followed up, “To the best of your memory, did you ever advise [Cannon] that he was legally obligated to indemnify Ms. Kim Shaw in 2017 for Kim Shaw‘s legal defense?” Berger answered, “I have no recollection of that.”
Later, Berger confirmed that he received an e-mail from Cannon in December 2017, which stated, “In order to keep the item confidential, I would like to know if the legal fees for defense of our employee, Kim Shaw, can be run through your office. Maybe an escrow account. Let me know if this is something that can be done.” Berger testified that he responded to Cannon‘s e-mail as follows, “Hi, [Cannon] … I‘m not really sure what you‘re proposing … [My law firm] isn‘t providing the defense to Ms. Shaw and really isn‘t involved with the matter at all. I think you retained separate counsel. Please let me know your thoughts.”
Berger confirmed that Cannon sent a followup e-mail, which stated: “Correct. What I‘m asking is if I can run the billing to Aero from Kim Shaw‘s legal counsel through your firm. We provide the funding, but I‘m trying to keep it confidential since she‘s the only one of the three defendants I have agreed Aero will defend. I didn‘t necessarily want the other two to know about it and assume we would pay for their defense as well.” Berger responded to Cannon‘s second e-mail, “I checked into this, and I don‘t think this will work out on our end. From a malpractice standpoint, we would be responsible for the work product of the other firm. From an ethics standpoint, we would
Berger also testified about Berger‘s notes and a November 2017 e-mail that he sent to Cannon concerning a recent meeting between them. The e-mail discussed, among other things, Cannon‘s request that Berger amend the minutes from one of Aero‘s board meetings to clarify that one of the board members did not participate in the board‘s decisions.
3.3. Analysis
Cannon first contends that the trial court erred when it permitted Berger to testify about whether Cannon sought his advice as to whether Aero was legally obligated to indemnify Shaw‘s defense. This argument lacks merit.
As we explained above, a client may waive the attorney-client privilege by voluntarily disclosing a significant part of the communication at issue. (
In addition, during his opening statement, defense counsel told the jury that the evidence would show that after Cannon spoke to Aero‘s attorney (i.e., Berger), Cannon concluded that Aero was legally obligated to pay the legal fees for Shaw‘s criminal defense. Defense counsel stressed that regardless of whether Cannon was ultimately correct in deciding to use Aero‘s funds to indemnify Shaw, Cannon acted in good faith because he “did his due diligence.” Cannon, therefore, indicated to the jury that he intended to rely on the advice of his counsel as a defense to the charges stemming from Aero‘s indemnification of Shaw‘s criminal defense. In other words, Cannon deliberately injected an advice-of-counsel defense into this case, implicitly waiving any privilege he held in any conversation he had with Berger about whether Aero was legally obligated to indemnify Shaw. (See Transamerica, supra, 188 Cal.App.3d at p. 1053.)
In short, the trial court did not abuse its discretion when it found that Cannon waived any attorney-client privilege in Berger‘s testimony about whether he advised Cannon that Aero was required to indemnify Shaw. The trial court, therefore, properly admitted Berger‘s testimony that he could not recall ever providing such advice to Cannon.
Cannon next contends that the trial court abused its discretion when it allowed Berger to testify about the series of e-mails he exchanged with Cannon concerning whether Aero could make payments for Shaw‘s legal defense through Berger‘s law firm and whether Berger could amend the minutes from one
The wrongful admission of evidence protected by the attorney-client privilege is generally reviewed under the harmless error standard applicable to state law errors established in People v. Watson (1956) 46 Cal.2d 818. (See People v. Clark (1990) 50 Cal.3d 583, 623; People v. Gillard (1997) 57 Cal.App.4th 136, 163.) Under Watson, the defendant bears the burden to establish the challenged error was prejudicial. (People v. Alexander (2010) 49 Cal.4th 846, 910.) The burden, therefore, is on Cannon to show that it is reasonably probable that he would have obtained a different verdict had the trial court excluded Berger‘s testimony about his e-mail exchanges with Cannon.
It is a fundamental rule of appellate review that an “appellant must affirmatively show prejudicial error.” (Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 403.) To meet this burden, the appellant must supply a reasoned argument and legal authority to support his claim that the challenged error was prejudicial. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).) “This burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] … waived.’ ” (Ibid.)
In his opening brief, Cannon asserts in a conclusory fashion that he was prejudiced by the admission of Berger‘s testimony concerning their e-mail exchanges. Although Cannon identifies
4. Challenges to the perjury convictions in counts 2 and 7
Cannon next challenges his perjury convictions in counts 2 and 7. First, he argues that the People were required to charge count 2, his perjury conviction for making false statements on one of his Form 700‘s, as a misdemeanor, and not a felony. Second, Cannon argues that even if the People properly charged count 2 as a felony, insufficient evidence supports both perjury convictions.
4.1. The Williamson rule does not apply to count 2
Cannon contends that under the rule announced in In re Williamson (1954) 43 Cal.2d 651, the People were required to charge him in count 2 with violating Government Code
” ‘Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute.’ ” (Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1007 (Hudson), quoting People v. Murphy (2011) 52 Cal.4th 81, 86.)
The Williamson rule applies when: (1) each element of the general statute corresponds to an element on the face of the special statute; or (2) when a violation of the special statute will necessarily result in a violation of the general statute. (People v. Lucero (2019) 41 Cal.App.5th 370, 405 (Lucero).) “If the Williamson rule applies, ‘the prosecution lacks power to prosecute under the general statute where the alleged facts parallel the acts proscribed by the more specific statute.’ ” (Ibid.)
However, if the more general statute contains an element that is not included in the special statute, and that element would not commonly occur in the context of a violation of the special statute, courts do not presume that the Legislature intended to preclude prosecution under the general statute. (Lucero, supra, 41 Cal.App.5th at p. 405.) Thus, “[w]hen the general statute includes an element not present in and imposes a punishment harsher than the special statute, ‘it is reasonable to infer that the Legislature intended to punish such conduct more
To establish the crime of perjury under
Under
Cannon‘s reliance on Hudson to argue otherwise is misplaced. There, the appellate court applied the Williamson rule to hold that the People were required to charge the defendant with a misdemeanor violation of Government Code
Unlike in Hudson, the two statutes at issue here do not require the same mental state. As we just explained, a felony violation of
4.2. Substantial evidence supports Cannon‘s perjury conviction in count 2
In count 2, the jury found Cannon guilty of perjury under
A perjury defendant under
Cannon began working as Palmdale‘s economic development manager on February 26, 2018. When he started working for Palmdale, Cannon was required to file a Form 700, disclosing any outside income that he received in the previous 12 months. On his original Form 700, Cannon stated that he received no reportable outside income during the previous 12 months.
In April 2020, the FPPC contacted Cannon about his failure to disclose the income he received from Aero in the year leading up to his employment with Palmdale. In response to the FPPC‘s inquiry, Cannon claimed that he misunderstood the requirements for disclosing outside income when he filed the original Form 700. According to Cannon, he believed he was required to disclose only the income he was then currently receiving, not the income he had received in the 12 months before he started working for the city. Cannon acknowledged that he should have disclosed the income he received from Aero in 2017.
Nevertheless, when Cannon filed his amended Form 700 in response to the FPPC‘s inquiry, he failed to disclose all the income that he received from Aero in the year leading up to his employment with Palmdale. Specifically, Cannon stated that he received between only $10,000 and $100,000 of income, even though Aero paid him over $120,000 of income in 2017 and nearly $69,000 of income in February 2018. Cannon did not dispute at trial that his amended Form 700 understated the amount of income he received from Aero.
At the time he filed his amended Form 700, Cannon was aware that Shaw and Miller were being criminally prosecuted for alleged financial misconduct while they worked for Aero. Indeed, Cannon had already filed multiple declarations in Shaw‘s criminal case attempting to lift that court‘s orders freezing Aero‘s bank accounts. The People also presented evidence that during the reporting period covered by Cannon‘s amended Form 700, Cannon made illegal bonus and severance payments to himself using the funds in Aero‘s bank accounts. In light of these circumstances, the jury reasonably could infer that Cannon intentionally understated his outside income on his amended Form 700 to conceal any illegal payments he made to himself using money from Aero‘s bank accounts in the 12 months leading up to his employment with Palmdale.
Cannon argues that the evidence does not support a finding that he acted with the intent to deceive when he understated his Aero income on his amended Form 700. Specifically, Cannon points to testimony from his former attorney that he (the attorney) drafted the amended Form 700 and inadvertently understated the amount of income that Cannon received from Aero. According to Cannon, the attorney‘s testimony shows that
First, the jury could have rejected Cannon‘s former attorney‘s explanation for why Cannon understated his income on his amended Form 700. We do not second guess the jury‘s credibility findings on appeal. (Lindberg, supra, 45 Cal.4th at p. 27.)
Second, the jury could have found that even though Cannon‘s attorney drafted the amended Form 700, Cannon was aware that the document understated the amount of income he received from Aero in the 12 months leading up to his employment with Palmdale. Indeed, Cannon signed and filed the amended Form 700. And while Cannon acknowledged to the FPPC that he did not disclose the salary he received from Aero in 2017 when he filed his original Form 700, he failed to acknowledge that he also received nearly $69,000 of income from Aero in February 2018. Thus, the jury could have found that Cannon was aware the amended Form 700 understated the income he received from Aero in the 12 months leading up to his employment with Palmdale, and that he did not correct the form before filing it because he intended to conceal the full amount of income he received from Aero.
Third, the testimony from Cannon‘s former attorney creates, at most, a conflict with the evidence that supports a finding that Cannon acted with the intent to deceive when he filed his amended Form 700. It is well settled that a reviewing court will not reverse a judgment simply because the evidence might also support findings that are contrary to those made by
Cannon also contends that the evidence establishes he had no reason to lie about the amount of income he received from Aero because he disclosed on the resume that he submitted in support of his application to work for Palmdale that he received more than $150,000 in salary from Aero in 2017. This argument also lacks merit.
Cannon‘s resume states that throughout 2017, Cannon was employed as a consultant in “Public & Private Sector Consulting” in San Dimas with a salary of $153,000. Although that portion of the resume states that Cannon had a contract with Aero to serve as its executive director, the resume does not explicitly state that the salary he received came from Aero. Rather, the resume‘s structure suggests that Cannon received his 2017 salary working as a consultant in San Dimas. Additionally, because the resume was submitted in late 2017, it makes no mention of the nearly $69,000 of income that Cannon received from Aero in February 2018. The resume, therefore, did not disclose the total income that Cannon received in the 12 months before he started working for Palmdale. Accordingly, nothing in Cannon‘s resume precluded the jury from finding that Cannon acted with the intent to deceive when he understated the amount of income he received from Aero on his amended Form 700.
4.3. Substantial evidence supports Cannon‘s perjury conviction in count 7
In count 7, the jury found Cannon guilty of perjury because he filed a sworn declaration in Shaw‘s criminal case in which he falsely stated that he was Aero‘s sole board member when he authorized the use of the organization‘s funds to indemnify
Cannon made the underlying false statement in a declaration that he filed in support of his request for the trial court in Shaw‘s criminal case to lift the order freezing Aero‘s bank accounts. In that declaration, Cannon claimed that he had the power to authorize the use of Aero‘s funds to pay Shaw‘s legal fees because he was Aero‘s only board member at the time he made that decision. That statement was false because, as Cannon concedes, Aero had at least one other board member when he decided to use the organization‘s funds to indemnify Shaw, and he never consulted that board member before making that decision.
The evidence supports a finding that Cannon knew his statement that he was Aero‘s only board member at the time he decided to indemnify Shaw was false. Aero‘s publicly available tax forms from 2017, the year Cannon authorized Shaw‘s indemnification, list Cannon as the organization‘s director and state that the organization had three voting board members. Those forms specifically identify two other individuals as then-serving board members. Although it is unclear whether one of those individuals was still a voting board member at the time Cannon decided to indemnify Shaw, the other individual testified that he did not resign from Aero‘s board until March 2018, well after Cannon made the indemnification decision. Cannon did not consult that board member before deciding to indemnify Shaw, and that board member did not vote on that decision. Based on this evidence, the jury could find that Cannon knew he was not Aero‘s only board member when he decided to use Aero‘s funds to
The jury also could find that Cannon intended to deceive the trial court in Shaw‘s criminal case when he made that statement. Cannon wanted the trial court to unfreeze Aero‘s bank accounts. To do that, Cannon needed to convince the trial court that Aero‘s funds were not being misused, including when he decided to use the organization‘s funds to indemnify Shaw. Accordingly, the jury could have found that by falsely stating that he was Aero‘s only board member at the time he decided to indemnify Shaw, Cannon intended to mislead the court into finding that decision was legitimate.
Cannon argues his conviction must be reversed because there was evidence that supports an inference that he did not intend to deceive the trial court when he filed the declaration in which he claimed he was Aero‘s sole board member when he decided to indemnify Shaw. Cannon points to evidence that he claims shows he mistakenly believed he was the only board member when he decided to indemnify Shaw. Cannon also points to testimony from his former attorney, who told the jury that he (the attorney) drafted Cannon‘s declaration and inadvertently assumed that Cannon was the only board member at the time Cannon decided Aero would indemnify Shaw. This argument lacks merit. As we already explained, reversal of a judgment “is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (Westerfield, supra, 6 Cal.5th 632 at p. 713.)
The judgment is affirmed.
VIRAMONTES, J.
I CONCUR:
WILEY, Acting P. J.
I concur, but write separately about the federal nature of the funds at issue in this case.
A jury convicted defendant Curtis Cannon of, among other charges, misappropriating public moneys in violation of
Beginning with the misappropriation statutes,
Turning to the embezzlement statutes,
In short, while the embezzlement provisions reach “public funds of the United States” as well as those of the state and entities therein (
It is critical that our statutes “‘“‘provide fair warning concerning conduct rendered illegal.’ “‘” (People v. Reynoza (2024) 15 Cal.5th 982, 1012–1013; see also People v. Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 244.) “‘[T]hey must provide a standard or guide against which conduct can be uniformly judged by courts.’ ” (Woodland Joint Unified School Dist. v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1453.) “‘“[D]eprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” ’ ” (People v. Taylor (1992) 7 Cal.App.4th 677, 693; see Bouie v. Columbia (1964) 378 U.S. 347, 352.) “[C]ourts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings.” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 632.) “‘[C]rimes built up by courts with the aid of inference, implication, and strained interpretation . . . are repugnant to’ ” our history of jurisprudence. (Ibid.) And this is so whether the assertedly unlawful conduct may fall under the purview of another statute
A hundred years ago, our Supreme Court decreed “section [424] has to do solely with the protection and safekeeping of public moneys as defined by
Holtzendorff contrasted
By Holtzendorff‘s logic, money of the federal government, when not handled by a public entity or officer, falls outside
People v. Johnson (2012) 209 Cal.App.4th 800 involved a
I can locate only one other authority addressing
My colleagues pass over Cannon‘s argument that
SCHERB, J.