Filed 5/17/16 P. v. Turpin CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



THE PEOPLE,                                                                B260812

         Plaintiff and Respondent,                                         (Los Angeles County
                                                                           Super. Ct. No. VA129083)
         v.

JOHN ROBERT TURPIN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert J. Higa, Judge. Affirmed.
         Christine C. Shaver, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey
and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.


                            _______________________________________
                                    INTRODUCTION
          A jury convicted John Robert Turpin of two counts of forgery and one count of
failing to file an income tax return. He appeals his forgery convictions, arguing
insufficient evidence supports the jury’s findings that the prosecution for those charges
was commenced within the four-year statute of limitations applicable to the crime of
forgery. He also argues the trial court’s statute-of-limitations instruction was
ambiguous and the court prejudicially erred by failing to clarify the instruction at the
jury’s request. We conclude substantial evidence supports the jury’s findings and
disagree that the court committed any instructional error. Accordingly, we affirm.
                                     BACKGROUND
          1.    The Loan and Escrow Agreements
          Between 2002 and 2007, Kenneth Fuller, a real estate agent and broker, engaged
in several real estate transactions with Turpin. Typically, Turpin would find and
manage investment properties and Fuller would secure financing from lenders. In
engaging in those transactions, Turpin would sometimes sign Fuller’s name on
documents without Fuller’s permission. Although Turpin would usually later tell Fuller
that he had signed Fuller’s name, Fuller never expressly gave Turpin permission to sign
his name. Nevertheless, Fuller trusted Turpin and considered Turpin to be his closest
friend.
          In 2007, Turpin wanted to purchase a property in Sunset Beach as part of a real
estate project he was working on, so he asked Fuller to help him qualify for a loan.
Howard Marans, another good friend of Turpin, agreed to lend Turpin and Fuller
$1,000,000 as a down payment on the Sunset Beach property. However, Marans
requested that Fuller be solely responsible for repaying the loan. As collateral for the
loan, Fuller provided Marans a security interest in real estate he owned. As part of the
agreement between Marans, Fuller, and Turpin, Fuller’s name was to be listed as the
buyer on the title for the Sunset Beach property. However, Fuller always viewed Turpin
as the real buyer and manager of the project, and he believed that the escrow account
with Escrow Legends was opened in Turpin’s name.


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       In February and April 2008, Marans gave Turpin two checks— totaling
$1,000,000—to be deposited in the escrow account. On June 3, 2008, Turpin instructed
the escrow agent, Kelli Redding, to release $100,000 to the seller of the Sunset Beach
property, David Fries. In a handwritten note, Turpin also instructed Redding to assign
all rights and interests in the account to Fuller. The assignment required an amendment
to escrow instructions, which required a signature from both Fries and Fuller. Fuller’s
signed name appeared on the document releasing $100,000 and amending the escrow
instructions. However, Fuller did not sign the document or give Turpin permission to
sign his name.
       On June 21, 2008, Fries cancelled escrow and directed that the funds held in the
escrow account be returned to the buyer, less any escrow fees. Turpin did not tell
Marans or Fuller that Fries cancelled escrow. On July 18, 2008, Redding received
a document, purportedly signed by Fuller, that cancelled escrow. Redding issued
a check for $750,000, the balance of the escrow account, to Turpin. Fuller did not sign
the document and did not give Turpin permission to sign his name.
       Throughout the year, Turpin gave Marans and Fuller numerous excuses about
why it was taking so long to close escrow, and he repeatedly assured them that the deal
for the Sunset Beach property was still going forward. Redding often did not return
Fuller’s phone calls, and she never notified Fuller that Fries had cancelled escrow.
Around January 7, 2009, Fuller heard a rumor that escrow had been cancelled. When he
questioned Turpin about it, Turpin sent a falsified ledger from Escrow Legends showing
the escrow account held a balance of $780,000. At that time, the actual balance of the
account was zero.
       On March 9, 2009, Fuller sent a fax to Redding instructing that no funds be
distributed from the escrow account without him being present to sign the release
authorization. On March 11, 2009, Turpin asked Fuller to meet him at a restaurant.
Turpin told Fuller that he removed the money from the escrow account, all of which he
had since spent. Turpin did not say how he had removed the money from the escrow
account, but he begged Fuller not to go to the police.


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       The day after Turpin confessed to Fuller, Fuller began calling Redding to inquire
about how the money could have been removed from the escrow account. When
Redding would not return his phone calls, Fuller engaged his attorney who contacted the
escrow agency. On March 17, 2009, Redding faxed a ledger to Fuller showing that the
true account balance was zero. The ledger showed, among other transactions, that
$100,000 was issued to Fries on June 3, 2008, and $750,000 was issued to Turpin on
July 18, 2008. On April 18, 2012, a detective served a search warrant on Escrow
Legends. An arrest warrant for Turpin was issued on March 14, 2013.
       2.     The Charges
       Turpin was charged with grand theft of personal property (Pen. Code,1 § 487,
subd. (a); count 1), two counts of forgery (§ 470, subd. (a); counts 2 & 3), and failure to
file income tax returns in 2008, 2009, and 2010 (Rev. and Tax. Code, § 19706; counts 4,
5 & 6).2 It was further alleged as to counts 1, 2, and 3, that the crimes were not
discovered within the meaning of section 803, subdivision (c), until March 11, 2009,
that they were related felonies involving a taking of more than $500,000 (§ 186.11,
subd. (a)), and that Turpin committed the offenses with intent to take, damage, and
destroy property of a value exceeding $200,000 (§ 12022.6, subd. (a)(2)).
       3.     The Evidentiary Hearing on the Statute of Limitations
       On July 17, 2014, Turpin filed a motion to dismiss counts 1, 2, and 3 as
time-barred (§ 995). In his motion, Turpin requested that the court conduct a pre-trial
evidentiary hearing to determine whether counts 1, 2, and 3 were brought within the
applicable statutory periods. On, July 18 and 21, 2014, the court held an evidentiary
hearing. The court dismissed count 1 as time-barred and denied the motion to dismiss
as to counts 2 and 3, the forgery charges. On August 14, 2014, the People amended the
information to allege the two counts of forgery were discovered on March 17, 2009.


1
       All undesignated statutory references are to the Penal Code.
2
        It appears that the People proceeded only with count 4, failure to file an income
tax return in 2008. The record is silent as to when counts 5 and 6 were dismissed.

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       4.     The Trial, Verdicts, and Sentencing
       Fuller testified as follows with respect to when he discovered Turpin had used
his forged signatures to release funds from the escrow account. Although Fuller knew
that Turpin had removed the funds from the escrow account as of March 11, 2009, he
did not know how Turpin had done so until March 17, 2009, when he received the true
ledger showing Turpin had forged Fuller’s signature to release the funds. Prior to
March 17, 2009, Turpin had never shown Fuller the true ledger, he had never discussed
with Fuller the details about how he removed the funds from the escrow account, and
Fuller had not been able to reach anyone at Escrow Legends to discuss the escrow
account.
       Before instructing the jury, the court took judicial notice of the fact that the
prosecution for forgery against Turpin was initiated on March 14, 2009, when Turpin’s
arrest warrant for the forgery charges was issued. The court then instructed the jury
using CALJIC No. 4.74:
               “This action was commenced on March 14, 2013. You may convict the
       defendant of forgery in violation of Penal Code section 470(a) only if the forgery
       was discovered within four years of the commencement of the action.
               “However, you may not convict the defendant of forgery if you find that
       in the exercise of reasonable diligence on the part of the alleged victim, the
       forgery would have been discovered at a time more than four years before the
       commencement of the action. The words [sic] ‘discovered’ as used in this
       instruction does not mean mere awareness of loss or misconduct, nor does it
       mean mere loss — [nor] does mere loss or misconduct in and of itself suggest
       a likelihood of forgery.
               “ ‘Discovered’ means an awareness that there has been loss and/or
       misconduct and that it was caused by criminal means.”

       During closing arguments, the prosecutor argued that Turpin’s forgeries were not
discovered until March 17, 2009, when Fuller first received the real ledger containing
his falsified signatures from June 3 and July 18, 2008. Turpin, on the other hand,
argued that Fuller discovered the loss was accomplished by criminal means when
Turpin confessed to the theft on March 11, 2009. Thus, he argued, the date of discovery
under the statute of limitations was March 11, 2009. Since the prosecution was not


                                              5
initiated until March 14, 2013, Turpin argued the statute of limitations had already
expired and the two counts of forgery were time-barred.
       The jury began deliberating on October 22, 2014. About two-and-a-half hours
after beginning deliberations, the jury submitted the following question:
       Can the court give additional explanation to [CALJIC No.] 4.74. There is some
       confusion over “discovered loss or misconduct” versus “discovered forgery.” Is
       it required to find guilty the discovery of “forgery,” or just “loss or misconduct”?

       After receiving the jury’s question, the court conferred with the prosecutor and
counsel for Turpin. Counsel for Turpin argued that discovery meant “just loss or
misconduct.” The prosecutor argued that loss or misconduct does not necessarily show
the likelihood of forgery, and that the jury should consider the instruction as a whole.
The court then called the jury into the courtroom. The court addressed the jury as
follows: “We’ve consulted with the lawyers, and the answer I will give you is direct
you back to [CALJIC No.] 4.74. . . . Read it as a whole. Read it as a whole. And we’ll
see where we are then.”
       On October 23, 2013, the jury convicted Turpin of both counts of forgery and
one count of failing to file an income tax return. The jury also found true the excessive-
taking allegations as to counts 2 and 3. Turpin was sentenced to five years and eight
months in state prison.
                                      DISCUSSION
       1.     Substantial evidence supports the jury’s findings
       Turpin does not contest that he committed the forgeries on June 3 and July 18,
2008. Rather, he argues that Fuller discovered the forgeries on March 11, 2009, and
that the prosecution was not commenced within the four-year statute of limitations
under section 801.5. (See People v. Price (2007) 155 Cal.App.4th 987, 991-996
[section 801.5’s four-year statute of limitations applies to prosecutions for forgery].)
Specifically, Turpin contends that the prosecution produced insufficient evidence that
the date of discovery of the forgeries under counts 2 and 3 was within four years of




                                             6
March 14, 2013. As a result, Turpin argues, his convictions for forgery should be
reversed.
       At trial, the prosecution had the burden of proving, by a preponderance of the
evidence, that the actions for forgery against Turpin were commenced within the
four-year statute of limitations applicable to those crimes. (People v. Castillo (2008)
168 Cal.App.4th 364, 369 (Castillo); People v. Zamora (1976) 18 Cal.3d 538, 565,
fn. 27.) Accordingly, the prosecution needed to prove that it commenced the forgery
actions “within four years after discovery of the commission of the offense, or within
four years after the completion of the offense, whichever is later.” (§ 801.5; see also
People v. Lopez (1997) 52 Cal.App.4th 233, 246 (Lopez) [the statute of limitations
begins to run when the crime is discovered by either the victim or the responsible law
enforcement authorities].) The statute of limitations does not begin to run until the
discovery of the offense, which occurs when the offense is actually discovered by the
victim or responsible law enforcement authorities, or those entities are aware of facts
which, when investigated with reasonable diligence, would make someone aware
a crime had occurred. (People v. Wong (2010) 186 Cal.App.4th 1433, 1444-1445.)
       We review a jury’s finding that a criminal prosecution was commenced within
the statute of limitations for substantial evidence. (Castillo, supra, 168 Cal.App.4th at
p. 369; see also People v. Le (2000) 82 Cal.App.4th 1352, 1361 [the substantial
evidence test applies even when reviewing a jury’s findings made under the
preponderance of the evidence standard].) We resolve all conflicts in favor of the
verdict and indulge every reasonable inference the jury could draw. (People v. Autry
(1995) 37 Cal.App.4th 351, 358.) “ ‘ “If the circumstances reasonably justify the jury’s
findings, the judgment may not be reversed simply because the circumstances might
also reasonably be reconciled with a contrary finding.” [Citation.]’ ” (People v.
Houston (2012) 54 Cal.4th 1186, 1215.)
       Here, the court took judicial notice of the fact that the criminal action against
Turpin for the two counts of forgery was commenced on March 14, 2013. By



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convicting Turpin of forgery, the jury implicitly found that Fuller did not discover the
forgeries before March 14, 2009. Substantial evidence supports these findings.
       Fuller testified that the first time he understood how the money in the escrow
account had been withdrawn was when he saw the true ledger on March 17, 2009.
Fuller also had no reason to know, prior to seeing the March 17, 2009 ledger, that
Turpin had used Fuller’s forged signatures to amend the escrow account. Fuller’s
March 9, 2009 instruction to Redding not to release any funds from the escrow account
without his presence and signature is evidence that he still believed there was money in
the account. Neither Redding nor Turpin informed Fuller that the account balance was
actually zero or that escrow had been cancelled. In addition, nothing about Turpin’s
March 11, 2009 confession led Fuller to suspect the theft had been accomplished by
forgery. Fuller believed the escrow account had been opened in Turpin’s name, and he
was not aware of any of the transactions Turpin and Fries had conducted with respect to
the account in June and July 2008. While Fuller should have been aware by March 11,
2009 that Turpin had committed a theft in removing funds from the escrow account, he
was not aware of any facts that would have put him on notice that the funds had been
removed by means of forgery until he received the true ledger on March 17, 2009.
(Lopez, supra, 52 Cal.App.4th at p. 246, fn. 4.)
       In addition, Fuller was reasonably diligent in investigating the loss after
March 11, 2009. The day after Turpin confessed to removing the money from the
escrow account, Fuller began trying to contact Redding to find out how the funds could
have been removed. Fuller also contacted his attorney and Marans shortly after his
conversation with Turpin. Fuller testified that although he thought he might be the
victim of a crime, he did not suspect Turpin had committed forgery to remove the funds
until he received the true ledger on March 17, 2009. Based on this evidence,
a reasonable trier of fact could conclude that the date of discovery was March 17, 2009,
and that the prosecution therefore was commenced within the statutory period.
       Turpin contends that the statute of limitations for the forgery charges began to
run on March 11, 2009. He argues that when he confessed to the theft on March 11,


                                             8
2009, Fuller “had solid facts sufficient to put a reasonably prudent person on inquiry as
to the presence of fraud.” (Internal quotations omitted.) He further argues that since
fraud is an element of forgery, Fuller should be deemed to have “discovered” the
forgeries upon learning of the theft.
       “Discovery” for purposes of commencing the limitations period occurs when the
victim discovers the loss was caused by the crime at issue. Section 803 proscribes that
the limitation period “does not commence to run until the discovery of an offense
described in this subdivision.” (§ 803, subd. (c) [emphasis added].) Similarly,
section 801.5 requires that the prosecution commence “within four years after discovery
of the commission of the offense, or within four years after the completion of the
offense . . . . ” (§ 801.5 [emphasis added].) The statutory language indicates that it is
the discovery of the specific offense—in this case, forgery—that commences the
limitations period. (§ 801.5; see also Lopez, supra, 52 Cal.App.4th at p. 246, fn. 4 [it is
the discovery of the crime (i.e., forgery) and not just a loss, that triggers the running of
the statute of limitations]; see also People v. Petronella (2013) 218 Cal.App.4th 945,
956 (Petronella).) Here, the record supports the finding that Fuller did not discover the
forgeries until March 17, 2009.
       Turpin also asserts Fuller was suspicious that Turpin had been engaging in illegal
conduct with respect to the escrow account long before March 17, 2009, and that upon
hearing the rumor that escrow had been cancelled, Fuller could have discovered the
forgeries through reasonable diligence. However, even if circumstances exist that may
arouse suspicion in a reasonable victim, subsequent reassurances by the defendant to
allay the victim’s suspicion may operate to delay the discovery of the crime. (See
Garrett v. Perry (1959) 53 Cal.2d 178, 181-182; see also Hartong v. Partake, Inc.
(1968) 266 Cal.App.2d 942, 966; Brownlee v. Vang (1965) 235 Cal.App.2d 465, 476.)
That is certainly the case here. Turpin repeatedly lied to both Marans and Fuller about
the progress of the project. Even after Fries cancelled escrow, Turpin continued to
claim he had saved the deal. When Fuller questioned Turpin about the rumor that
escrow had been cancelled, Turpin falsified a ledger from Escrow Legends.


                                              9
Furthermore, Redding would not return Fuller’s calls, did not notify him that escrow
had been cancelled, and did not contact Fuller after Turpin confessed to her. These
factors delayed discovery and support the jury’s conclusion that Fuller could not have
discovered the forgeries earlier. After reviewing the record, we find there is sufficient
evidence to support the jury’s finding by a preponderance of the evidence.
       2.     The court did not err in addressing the jury’s request for
              clarification of the statute-of-limitations instruction

       Turpin next contends the court prejudicially erred in responding to the jury’s
request for clarification of the instruction. Turpin argues the jury’s confusion about the
instruction’s language was compounded by the court’s response that the jury should
read the instruction as a whole. According to Turpin, the court should have clarified for
the jury that “discovery” for purposes of triggering the statute of limitations occurs
when the victim or law enforcement is aware that the loss was caused by general
criminal misconduct, not the specific crime the defendant is charge with.
       Although Turpin also asserts the language of the statute-of-limitations instruction
provided by the court is ambiguous, he concedes in his opening brief that the language
of the instruction complies with California law. In any event, we conclude the court
properly instructed the jury on the statute of limitations for the forgery charges. “In
reviewing a challenge to jury instructions, we must consider the instructions as a whole.
[Citation.]” (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294.) As explained
above, it is the discovery of the charged crime, not just criminal misconduct, which
triggers the running of the statute of limitations. (See § 801.5; see also Lopez, supra,
52 Cal.App.4th at p. 246, fn. 4; see also Petronella, supra, 218 Cal.App.4th at p. 956.)
Therefore, it was proper for the court to insert “forgery” in the instruction’s blank space
reserved for the offense at issue when instructing the jury that to convict Turpin of
forgery, the forgery must have been discovered within four years.
       In addition, the trial court was not obligated to attempt to further clarify
CALJIC No. 4.74 at the jury’s request. Under section 1138, when jurors “desire to be
informed on any point of law arising in the case,” the court must provide them “the


                                             10
information required.” Section 1138 “imposes a ‘mandatory’ duty to clear up any
instructional confusion expressed by the jury.” (People v. Gonzalez (1990) 51 Cal.3d
1179, 1212, superseded by statute on another ground as stated in In re Steele (2004)
32 Cal.4th 682, 691.) This does not mean, however, that the court must always
elaborate on the standard instructions. (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
“Where the original instructions are themselves full and complete, the court has
discretion under section 1138 to determine what additional explanations are sufficient to
satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from
the standard are often risky.” (Ibid.) The court may decide to reiterate the instructions
already given, if it believes doing so will help correct the jury’s confusion. (Ibid.)
       That is exactly what the court did here. Rather than attempting to expand on, or
modify, the language of CALJIC No. 4.74, the court decided it was best to redirect the
jury’s attention to the instruction’s language and provide guidance on how to read that
language. Had the jurors required additional clarification after being instructed to
consider CALJIC No. 4.74 as a whole, they could have requested such clarification.
Indeed, the fact that the jury reached verdicts on both forgery counts less than one day
after the court addressed its request for clarification demonstrates that the court’s
response to the jury’s questions helped clarify the ambiguity that was troubling the jury.
(See People v. Yoder (1979) 100 Cal.App.3d 333, 338 [“We must also assume that the
jurors are intelligent persons and capable of understanding and correlating all the
instructions which are given.”]) Accordingly, we conclude the court did not err in
responding to the jury’s request for clarification.




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                                   DISPOSITION
      The judgment is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                    LAVIN, J.
WE CONCUR:




      ALDRICH, Acting P. J.




      HOGUE, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


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