People v. Selivanov (5 Cal. App. 5th 726, 2016)

Opinion

COLLINS, J.

Spouses Yevgeny “Eugene” Selivanov and Tatyana Berkovich founded a charter school, Ivy Academia, in 2003. In 2006, the Los Angeles Unified School District (LAUSD), which issued Ivy Academia’s charter, conducted a random audit of the school’s finances. The audit revealed several irregularities, prompting a further inveshgation that ultimately resulted in the filing of a 33-count information charging Selivanov and Berkovich with numerous financial crimes. After a five-week trial, a jury convicted Selivanov and Berkovich of felony embezzlement (Pen. Code, § 504) and felony misappropriation of public moneys (§ 424, subd. (a)). The jury further convicted Selivanov of felony false accounting of public moneys (§ 424, subd. (a), money laundering (§ 186.10) and filing false tax returns (Rev. & Tax. Code, § 19705, subd. (a)). In addition, as to Selivanov, the jury found true the allegation that the total losses associated with six of the embezzlement counts exceeded $65,000. (§ 12022.6, subd. (a)(1).)

Selivanov and Berkovich each moved for a new trial. The trial court granted the motions as to all of their convictions for misappropriation and false accounting of public moneys under section 424, subdivision (a), on the ground that it improperly had instructed the jury that the funds involved were public moneys. The court sentenced Selivanov to a total of four years eight months in state prison, and sentenced Berkovich to formal probation on the condition that she serve 45 days in county jail. Both defendants were ordered to pay fines, fees, and restitution.

Selivanov and Berkovich appeal. They jointly challenge one of their embezzlement convictions on several grounds, including sufficiency of the evidence and the trial court’s failure to give a unanimity instruction. They also seek reversal based on the court’s failure to instruct the jury to determine whether the amount embezzled exceeded $950, and whether the embezzled funds were public funds within the meaning of section 514. Both defendants also contend the court erred by failing to consider proffered juror declarations when setting their restitution. Selivanov separately challenges the sufficiency of the evidence underlying his other convictions. He also challenges the court’s failure to instruct the jury on the claim-of-right defense, the admission of certain accounting documents, and several aspects of the restitution order.

As we explain more fully below, we conclude the trial court erred in making the public funds finding but affirm defendants’ convictions because the error was harmless. We do, however, direct the trial court to strike from Selivanov’s restitution order the joint and several obligation to pay $22,396.60 in restitution to Ivy Academia in connection with his embezzlement conviction in count 2, and strike from Berkovich’s restitution order any language making Selivanov jointly and severally liable for it. As modified, the judgments of the trial court are otherwise affirmed in full.

The Los Angeles County District Attorney on behalf of the People filed a cross-appeal challenging the trial court’s grant of defendants’ motions for new trial of the section 424 counts. In their opening brief, the People contend the trial court relied on outdated case law to conclude that the jury was required to determine whether a charter school is a district; they do not challenge the validity of the actual basis for the court’s ruling, its jury instruction on “public moneys.” In their reply, however, the People argue that the trial court’s actual basis for granting the motion was erroneous. They urge us to excuse their oversight, reverse the trial court’s rulings on the motions for new trial, and reinstate the guilty verdicts on all of the section 424, subdivision (a) counts affected by the motions. We decline their invitation to do so and affirm the trial court’s order granting defendants’ new trial motions.

PROCEDURAL HISTORY

On May 4, 2011, the People filed a 33-count information charging defendants with various financial crimes. Counts 1, 3, 5, 7, and 39 charged both defendants with misappropriating public moneys. (§ 424, subd. (a).) Each of those misappropriation counts was paired with a charge of embezzlement in excess of $950. (§ 504; counts 2, 4, 6, 8, and 40, respectively.) The information also charged both defendants with filing false personal income tax returns in violation of Revenue and Taxation Code section 19705, subdivision (a) (counts 27-31).

Selivanov alone was charged with five additional counts of misappropriating and falsely accounting for public moneys. (§ 424, subd. (a); counts 9, 11, 18, 21, and 24.) Four of those counts (9, 18, 21, and 24) were paired with a count of embezzlement in excess of $950 stemming from the same conduct. (§ 504; counts 10, 19, 22, and 25, respectively.) Three of those misappropriation-embezzlement count pairs—18 to 19, 21 to 22, and 24 to 25—were further supplemented with a related count of money laundering (§ 186.10, subd. (a); counts 20, 23, and 26.) The information also alleged that Selivanov alone filed false business income tax returns. (Rev. & Tax. Code, § 19705, subd. (a); counts 32-36.) Berkovich alone was charged with one count of conflict of interest (Gov. Code, §§ 87100, 91000; count 38).

The information further alleged, with respect to the misappropriation, embezzlement, and money laundering charges in counts 1 to 8, 18 to 26, and 39 to 40, that defendants took, damaged, and destroyed property of a value exceeding $65,000 within the meaning of section 12022.6, subdivision (a)(1). With respect to most of the embezzlement counts, including all of those sounding against Berkovich, namely counts 2, 4, 6, 8, 10, 19, and 40, the information alleged that the funds embezzled were “public funds” within the meaning of section 514.

Embezzlement and misappropriation counts 3 to 6 and 9 to 10 were dismissed pursuant to defendants’ section 995 motions following the preliminary hearing. The court later dismissed the conflict of interest charge against Berkovich (count 38) pursuant to the People’s motion under section 1385. Defendants pleaded not guilty to the remaining charges and denied all of the special allegations.

Defendants were tried jointly before a jury in February and March 2013. On April 5, 2013, the jury found Selivanov guilty of seven counts of misappropriating or falsely accounting for public moneys (counts 1, 7, 11, 18, 21, 24, and 39), six counts of embezzling in excess of $950 (counts 2, 8, 19, 22, 25, and 40), two counts of money laundering (counts 23 and 26), and 10 counts of filing false tax returns (counts 27-36). The jury acquitted Selivanov of a third money laundering charge (count 20) but found true the special allegation that, as to counts 2, 8, 19, 22, 25, and 40, Selivanov in the aggregate took money exceeding $65,000 within the meaning of section 12022.6, subdivision (a)(1).

The jury found Berkovich guilty of two counts of misappropriating public moneys (counts 1 and 39), one count of embezzling in excess of $950 (count 2), and five misdemeanor tax counts that were lesser included offenses of the charged felony tax violations (counts 27-31). The jury acquitted Berkovich of one additional count of misappropriation (count 7) and two additional counts of embezzlement in excess of $950 (counts 8 and 40). It also found not true the special allegation that she embezzled in excess of $65,000 within the meaning of section 12022.6, subdivision (a)(1). The court later dismissed Berkovich’s misdemeanor tax convictions at the People’s request, pursuant to section 1382.

Selivanov and Berkovich each moved for a new trial. The court granted the motions as to the misappropriation and false accounting counts charged under section 424, subdivision (a) (counts 1, 7, 11, 18, 21, 24, and 39) and denied the motions in all other respects.

At sentencing, at the People’s request and over defendants’ objections, the court found that “this case involved public funds” within the meaning of section 514, the statute setting out the punishment scheme for embezzlement offenses. The court later denied defendants’ motions to strike the finding.

The court sentenced Selivanov to a total of four years eight months in state prison, calculated as the high term of three years on one of the embezzlement counts (§ 504; count 8); an additional year for the enhancement on that count (§ 12022.6, subd. (a)); and eight months, one-third the midterm, on one of the money laundering counts (§ 186.10, subd. (a); count 26). The court imposed concurrent terms on all other counts of conviction. After a contested restitution hearing, the court ordered Selivanov to pay a total of $271,795.11 in restitution. Of that amount, $227,896.11 was payable to Ivy Academia: $126,654.73 was assessed in connection with count 40; $66,795.96 was assessed in connection with counts 8, 19, 22, and 25; and a total of $34,445.42 was assessed in connection with count 2. The remaining $43,899 of Selivanov’s restitution was payable to the Franchise Tax Board in connection with the tax convictions in counts 27 to 36. The court also ordered Selivanov to pay a restitution fine of $5,000 and imposed and suspended a $5,000 parole revocation restitution fine.

The court sentenced Berkovich to five years’ formal probation, on the condition that she serve the first 45 days in county jail. The court also ordered her to perform 320 hours of community service. The court found Berkovich jointly and severally liable with Selivanov for $22,396.60 in restitution in connection with her sole conviction for embezzlement (count 2). The court ordered Berkovich to pay a $1,000 restitution fine.

Both defendants timely appealed. The People also timely appealed the court’s grant of defendants’ new trial motions. The appeals were consolidated for oral argument and decision.

FACTUAL BACKGROUND

This case concerns obfuscatory and complex financial transactions and accounting procedures. In the interest of clarity and brevity, we recite immediately below the facts underlying the charged conduct, organized topically. Additional facts pertinent to the legal issues raised on appeal will be discussed as necessary in connection with those issues.

I. Ivy Academia

This case centers on defendants’ conduct in their capacities as the founders and operators of a charter school, Ivy Academia. Charter schools are “public schools funded with public money but run by private individuals or entities rather than traditional public school districts.” (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 205 [159 Cal.Rptr.3d 358, 303 P.3d 1140].) Though operated independently, charter schools are subject to public oversight. (Id. at p. 206.)

Selivanov was the executive director of Ivy Academia. Berkovich initially served as the school’s principal and later became its president. Both defendants continuously served on Ivy Academia’s governing board of directors.

A. Founding and Corporate Organization

In October 2003, defendants filed a petition to establish Ivy Academia with the Charter Schools Division of LAUSD, which oversees charter schools. LAUSD approved the petition, authorizing Ivy Academia to begin operations the next fiscal year, July 1, 2004, through June 30, 2005. After the charter was approved, Selivanov incorporated Alternative Schools, Inc., a nonprofit public benefit corporation, to operate and do business as Ivy Academia. Selivanov also filed a fictitious business name statement identifying Ivy Academia as a fictitious name of Alternative Schools, Inc.

Defendants also owned another business entity, Academy Just for Kids, LLC (AJFK). Selivanov changed the name of that business to EGeneration, LLC, in April 2005.

B. Funding and Finances

1. Charter School Funding Generally

According to prosecution witness Aaron Eairleywine, the central business advisor for LAUSD’s Charter Schools Division, Ivy Academia was considered a public school entitled to receive state funds and federal funds that flow through the state. Eairleywine and Patricia Smith, a representative of the Los Angeles County Office of Education’s finance department, testified that the allocations from the state are “designed to fund the educational activities,” “instructional program,” and general operation of charter schools. Funding is based on charter schools’ average daily attendance and is distributed primarily in the form of categorical and general purpose block grants. According to Eairleywine and Smith, categorical and general purpose block grants are considered unrestricted funds that may be spent “for the overall operation of the agency and its purpose”—i.e., for school or educational purposes. Eairleywine and Smith further testified that charter schools also receive restricted grants and other funds that must be spent for particular purposes, such as purchasing supplies, reducing class sizes, or paying for standardized testing. They both noted that LAUSD does not train charter school operators on the proper use of categorical or general purpose block grant funds.

According to Eairleywine, money usually does not begin flowing from the state to a new charter school until after the school begins operating. But new charter schools need funds at their inception to secure facilities, pay staff, and prepare the school for students. For that reason, Eairleywine explained, LAUSD requires charter schools to demonstrate access to funding in their initial petitions. Some charter schools obtain these initial funds through grants or philanthropic gifts. Others, like Ivy Academia, use loans.

2. The Start-up Loan

Ivy Academia obtained a $250,000 loan from the State Department of Education. Ivy Academia also obtained a loan from Selivanov and Berkovich, referred to at trial as the “start-up loan.” Ivy Academia’s governing board approved the start-up loan in August 2004. It documented receipt of the start-up loan by issuing a three-year, unsecured promissory note payable to Selivanov in the amount of $250,000, plus 9 percent interest.

Despite the personal nature of the loan and language in the promissory note making it payable to Selivanov personally, the start-up loan was booked in the “Due to Academy” account in Ivy Academia’s QuickBooks accounting software. “Academy” referred to defendants’ business entity AJFK. The Due to Academy account was one of three QuickBooks accounts recording amounts owed to Selivanov, Berkovich, and their business entities. The other two, “Due to Management” and “Due to EGeneration,” will be addressed below.

The amount initially entered in the Due to Academy account on September 30, 2004, was approximately $397,000, though both the promissory note approved by the board and the audited financial statements Ivy Academia submitted to LAUSD reflected a loan of only $250,000. A few weeks later, on October 19, 2004, Ivy Academia made a $300,000 payment to A1FK, reducing the amount owed in the Due to Academy account to approximately $97,000. However, this payment appeared on Ivy Academia’s audited financial statements as a payment of only approximately $74,000. The only people with access to Ivy Academia’s QuickBooks accounting software were Selivanov and the school’s bookkeeper, Marina Pilyavskaya. Pilyavskaya, who testified under a grant of immunity, testified that she did not do the books for defendants’ other business entities.

The People charged Selivanov with falsifying the accounting of public moneys in connection with the discrepancies in the documentation of the start-up loan and its repayment (§ 424, subd. (a); count 11).

3. Deferred Salaries

During the first year of Ivy Academia’s operation, the school did not have funds available to pay salaries to Selivanov and Berkovich. Ivy Academia’s governing board voted to defer payment of the salaries, plus 9 percent interest, until the school’s finances improved. Pilyavskaya entered the deferred salaries owed—$100,000 to Selivanov and $80,000 to Berkovich—into another QuickBooks account, Due to Management. The amount owing in the Due to Management account increased to $230,000 after the board approved bonuses for both Selivanov and Berkovich. Ivy Academia regularly made payments to defendants to offset the interest accruing on the Due to Management account, but did not make formal salary payments against this account until April 2008, when it issued Selivanov a check for $18,000. The Due to Management account reflected two additional salary payments to defendants in 2008 (another $18,000 to Selivanov and $10,000 to Berkovich) and two to each defendant in 2009. Each defendant received a check for $11,000 in April 2009, and the Due to Management account reflected that. The other salary payment each defendant received in 2009—a check for $7,000—was documented in the Due to Management account as a payment of only $1,727.80. No further salary payments were documented in the Due to Management account until early 2011, after the board voted to pay down the salary still owed to defendants in regular increments. The balance of the Due to Management account reached zero in July 2011.

4. Financial Oversight

Like other charter schools authorized by LAUSD, Ivy Academia was subject to examination and audits by the LAUSD Charter Schools Division. Eairleywine testified that charter schools are required to submit preliminary budgets, interim reports, and annual audits to the Charter Schools Division in addition to undergoing on-site reviews. Charter schools also are required to hire independent auditors, selected from a list approved by California’s State Controller’s Office, to prepare annual audited financial statements. Although it complied with these requirements, Ivy Academia was the subject of a random audit in 2006. That audit led to a lengthy investigation that resulted in the criminal charges at issue here. While the investigation was ongoing, in 2008, LAUSD approved Ivy Academia’s petition to renew its charter.

II. American Express Charges and Expenditure of Public Funds

Selivanov and Berkovich each had an Ivy Academia American Express credit card. The People alleged that defendants’ use of their American Express cards constituted misappropriation of public moneys (§ 424, subd. (a); count 1) and embezzlement of public funds (§§ 504, 514; count 2).

Pilyavskaya testified that she was responsible for processing the defendants’ charges. When she received the monthly American Express bill, she would prepare expense reports and request receipts supporting defendants’ purchases. Pilyavskaya attached the receipts to the expense reports and gave them to Boardmember Arthur Sarkisian for approval. Sarkisian approved the expense reports and then returned the reports and accompanying receipts to Pilyavskaya, who kept them in her office.

During LAUSD’s investigation of Ivy Academia, LAUSD financial analyst and forensic accountant Connie Delos Santos reviewed Pilyavskaya’s American Express records. Delos Santos prepared a spreadsheet showing all charges made to the Ivy Academia American Express account from January 2005 through January 2010. She highlighted each charge she deemed “questionable” or “disallowed” based on her online research into public school spending, her general understanding of the types of purchases that have school purposes versus those that are “personal in nature,” and an LAUSD meal policy. The charges Delos Santos deemed “questionable” totaled $34,445.42.

According to Delos Santos, the “questionable” charges made on Selivanov’s American Express card totaled $12,048.82. These charges included $48.71 for flowers purchased on Valentine’s Day and booked into the “Office Supply” account in Ivy Academia’s QuickBooks; $59.94 for a business meeting at Crazy Tokyo on a Friday night at 9:48 p.m., booked as utilities and housekeeping; and $135.89 at Cheesecake Factory on a Saturday afternoon for a business meeting. The “questionable” charges on Berkovich’s American Express card totaled $22,396.60. They included $67.38 for two “Welcome Baby” floral arrangements, booked as other office supplies; two $42.45 floral arrangements for Councilman Jack Weiss, booked as teacher appreciation; $631.38 at Things Remembered, booked as maintenance supplies; $100 for a Crate and Barrel gift card, also booked as maintenance supplies; $995 for a “Tax secrets seminar by Patrick James,” booked as other professional development; and various items purchased at Costco, including a Speedo bathing suit, shrimp scampi, and Pull-Ups training pants. Both defendants also repeatedly charged hundreds of dollars at bowling alleys and restaurants for “teacher appreciation” events, at least one of which included the purchase of alcohol.

Defendants did not reimburse Ivy Academia for any of these charges, though Pilyavskaya testified that Berkovich sometimes wrote “no” or “mine” on receipts to indicate items that were not purchased for the school. Defendants did not reduce the amount owed to them in the Due to Management account by documenting their “questionable” purchases there, and they did not report the purchases as income on their personal income taxes. According to former Ivy Academia principal Christina Desiderio, however, Berkovich boasted that her Ivy Academia credit card was “unlimited” and stated that she wanted to open more charter schools because “it could make you a millionaire.”

The independent auditors who prepared financial statements for Ivy Academia included a note in their 2006 report that “there was a problem with the credit card use,” including inadequate explanations for charges, and expenditures that “appeared to be personal in nature.” Prosecution witness Michael Atkinson, a senior investigator with LAUSD’s office of the inspector general, testified that the audit paperwork included a notation that “Selivanov had fought with them about having that information removed from the audit report” and another reminding the auditors to “closely review their use of credit cards to see if these deficiencies have been corrected.”

Both the prosecution and the defense presented witnesses who testified about the standards governing spending by charter schools. All of the witnesses generally agreed that public moneys or funds received by charter schools must be spent on educational or school purposes. The witnesses differed, however, on whether or under what conditions certain expenditures met that standard. Eairleywine and Smith testified that gifts for teachers and staff, and “activities for the pleasure of faculty and teachers and staff such as bowling,” would not be permissible under any circumstances, and that “after hours dinners off campus” would “probably not” constitute proper expenditures of charter school funds. Defense witnesses Caprice Young, founder of the California Charter Schools Association; Eric Premack, executive director of the Charter Schools Development Center; and Roger Lowenstein, the founder and director of a charter school, all testified that such expenditures could be appropriate. Premack added that a charter school would need to have “reason to believe that it helps the school achieve its instructional goals,” and Lowenstein agreed that charter schools have a duty to guard public funds.

III. Rent Increase

In June 2004, defendants’ other business entity, AJFK, entered into a 10-year sublease agreement with J & N Amoroso Family Investments, LLC, for a property to use as Ivy Academia’s campus. Under the sublease, which Selivanov and Berkovich personally guaranteed, AJFK agreed to pay rent of $18,390 per month for a 24,520-square-foot building on De Soto Avenue in Woodland Hills. The rent was adjustable, but increases were tied to the Consumer Price Index and capped at 5 percent per year.

Without the knowledge of landlord J & N Amoroso Family Investments, AJFK assigned the sublease to Alternative Schools, Inc. (Ivy Academia), on September 1, 2004, for a period of two years. Ivy Academia moved into the De Soto Avenue building shortly thereafter. Under the terms of the sublease assignment, Ivy Academia became jointly and severally liable for AJFK’s obligations under the sublease, including the monthly rent of $18,390 per month.

On October 2, 2008, more than two years after the original sublease assignment expired, Selivanov presented the Ivy Academia board with a proposal to approve another assignment and assumption of the sublease. The new “Assignment Assumption of Lease” would be “made as of July 1st, 2007 by and between [AJFK] (EGeneration LLC) . . . and Alternative Schools Inc. ... for a period of seven years.” Under the terms of Selivanov’s proposed Assignment Assumption of Lease, Alternative Schools, Inc. (Ivy Academia), would agree “to make a monthly payment to [AJFK/EGeneration], or its designee, in the amount of $43,870.05 for the use of the facility and lease guarantees.” The monthly rent was scheduled to increase 5 percent each year on July 1. Selivanov presented to the board a “Broker Opinion of Value” prepared by real estate brokerage firm Lee & Associates. That opinion stated that the reasonable fair market value of monthly rent for the approximately 27,000-square-foot building “in its current condition and existing use” as of October 28, 2007, was approximately $1.75 per square foot, triple net, or $47,250.

Defendants recused themselves from voting on the Assignment Assumption of Lease. The remaining two board members who were present decided the substantial rent increase it contained “was an appropriate risk that the school was taking” and approved the Assignment Assumption of Lease. However, one of them, Alex Kauffman, testified at the preliminary hearing that he never reviewed the original sublease. Selivanov signed the undated Assignment Assumption of Lease on behalf of AJFK/EGeneration, and board treasurer Arthur Sarkisian—who had been absent from the meeting at which the proposal was presented and approved—signed on behalf of Ivy Academia.

According to Kauffman’s preliminary hearing testimony as read at trial, the board discussed “the fact that Ivy’s monthly payment is only 90% of the fair market value of the facilities as determined by Lee & Associates and the school has just rented [a] new high school facility at $1.75 per square foot in tremendous competition with another charter school.” Kauffman further testified that the board also viewed the rent increase as the fair market value of the “constant risk” defendants assumed when they obtained a loan from Western Commercial Bank to improve the premises. (See pt. IV., post, at pp. 744-746.)

LAUSD investigator Michael Atkinson testified that the effect of the board’s approval of the Assignment and Assumption of Lease was an increase in the monthly “rent that Ivy Academia has to pay from [$] 18,390 per month to $43,870.05 per month,” an increase of approximately $25,480 per month, or nearly 139 percent. The total net amount of increased rent owed from the agreement’s effective date of July 1, 2007, through June 2, 2008, was approximately $237,000. This amount—$237,000—was entered into Ivy Academia’s Due to EGeneration QuickBooks account as a liability to EGeneration on June 30, 2008, roughly three months before the board was apprised of and approved the Assignment and Assumption of Lease on October 2, 2008.

Jason Amoroso, a real estate attorney involved with the original sublease between J & N Amoroso Family Investments and AJFK, testified that the fair market value of the De Soto Avenue property was that originally agreed upon: $18,390 per month, increasing each year in step with inflation. He also testified that he was not aware that AJFK ever assigned the lease to Ivy Academia. QuickBooks printouts introduced by defendants showed that Ivy Academia continued to pay J & N Amoroso Family Investments the originally agreed upon rent even after the increase was approved by the board and booked into Ivy Academia’s QuickBooks. Amoroso, however, testified that “we received checks from Ivy Academia[,] EGeneration, various entities . . . and they stated they were involved with the school.”

Prosecution witness James Balbin, a certified public accountant, opined that the rent increase was a “sham transaction” that was “just absurd.” He further testified that there was “no business purpose to increase the lease payment due on this rent.” Defense expert Jan Goren, a certified public accountant, countered that the rent increase reflected various business risks: the risk that defendants would need to satisfy their guarantee on the original sublease, the risk that they would have to remove various leasehold improvements from the premises, and the risk that Ivy Academia could lose its charter.

Selivanov presented testimony from Robert Gutzman, a real estate appraiser. Gutzman conducted a historical appraisal of the property, which he determined to be 27,854 square feet. Gutzman testified that the property was worth approximately $1.66 per square foot, or $46,125 per month, as of July 1, 2007, and approximately $1.70 per square foot, or $47,250 per month as of October 1, 2008.

The People alleged that certain payments made to EGeneration after the rent increase constituted both misappropriation of public funds (§ 424, subd. (a); count 7) and embezzlement of public funds (§§ 504, 514; count 8).

IV. Western Commercial Bank Loan

In June 2006, Alternative Schools, Inc. (Ivy Academia), obtained a five-year, $500,000 loan from Western Commercial Bank to finance “phase two remodeling” of the De Soto Avenue premises from a warehouse into a school. In August 2006, the loan amount was increased to $600,000.

In March 2009, when the outstanding balance of the loan stood at $390,000, Selivanov asked Western Commercial Bank to change the borrowing entity on the loan from Alternative Schools, Inc., to EGeneration, LLC. According to former Western Commercial Bank underwriter Jennifer Irrizary, Selivanov made the request because he needed some additional write-offs. The bank effectuated the change on March 20, 2009. Both defendants signed in their capacity as managers of EGeneration, and Selivanov personally guaranteed the loan.

Just as the rent increase was documented in Ivy Academia’s QuickBooks months before it was presented to and approved by the board, changes to the loan were entered into Ivy Academia’s QuickBooks long before Western Commercial Bank formally transferred the loan to EGeneration. According to prosecution witnesses Atkinson, Delos Santos, and Balbin, Ivy Academia’s QuickBooks documented an “asset sale” on July 1, 2007, when the loan had an outstanding balance of $520,000. According to those witnesses, the asset sale consisted of EGeneration’s assumption of responsibility for the $520,000 loan balance in exchange for Ivy Academia’s transfer of $520,000 worth of improvements on the De Soto Avenue property to EGeneration. The property improvements were not physically transferred to EGeneration, because Ivy Academia was using them on its campus. However, the property improvement assets were removed from Ivy Academia’s balance sheet and transferred to EGeneration’s along with the loan liability. Delos Santos and Franchise Tax Board special agent Rigoberto Salazar both testified that EGeneration claimed a depreciation deduction for the assets on its 2007 limited liability company return of income taxation form.

The asset sale transaction was presented to and approved by the Ivy Academia board on October 2, 2008, concurrently with the rent increase. The board minutes, which the parties stipulated were admissible as business records, state that the board “noticed that the sale of assets is beneficial to Ivy as it allows the school to strengthen its balance sheet, while EGeneration LLC will only be able to recognize about 30c [sic] on $1 benefit from this purchase through the depreciation of assets.” The board accordingly approved the transaction, which was documented in the same Assignment Assumption of Lease that effectuated the rent increase. As noted above {ante, fn. 6), a single sentence in the one-page Assignment Assumption of Lease contained both provisions. That sentence stated that Ivy Academia “agrees to sell to [EGeneration] $520,000 of tenant improvements, in return [EGeneration] agrees to assume $520,000 of [Ivy Academia’s] bank loan from Western Commercial bank, and . . . [Ivy Academia] agrees to make a monthly payment to [EGeneration], or its designee, in the amount of $43,870.05 for the use of the facility and lease guarantees; this payment will increase 5% every July 1st.”

After liability for the loan was transferred from Ivy Academia to EGeneration, Ivy Academia continued to make loan payments directly to Western Commercial Bank. According to Delos Santos and Pilyavskaya, these payments—totaling $126,654.73—were recorded in Ivy Academia’s QuickBooks as rent payments. Pilyavskaya agreed on cross-examination that payments on the loan were recorded as rent payments “as of at least August 16th of 2008,” predating both board approval of the asset sale transaction (Oct. 2, 2008) and the formal transfer of the loan to EGeneration (Mar. 2, 2009), but postdating the putative effective date of the asset sale transaction (July 1, 2007).

After the rent increase, Ivy Academia owed $43,870.05 in rent per month. That amount, less that month’s payment to J & N Amoroso Family Investments and the loan payment to Western Commercial Bank, was documented in the Due to EGeneration account each month as a liability Ivy Academia owed to EGeneration. According to defense expert Goren, this arrangement was a consequence of the “or its designee” clause in the Assignment Assumption of Lease the board approved on October 2, 2008: “[Ivy Academia] agrees to make a monthly payment to [EGeneration], or its designee, in the amount of $43,870.05 for the use of the facility and lease guarantees . . . .” Goren explained that, after the rent increase, Ivy Academia owed $43,870.05 in rent to EGeneration each month. However, EGeneration named J & N Amoroso Family Investments and Western Commercial Bank as its designees to which Ivy Academia should make monthly payments in partial satisfaction of the total increased rent. In other words, Ivy Academia would pay some portion of the $43,870.05 rent to J & N Amoroso Family Investments, and another portion to Western Commercial Bank, at EGeneration’s behest. Any remaining amount owed beyond those two payments each month was booked as a liability in the Due to EGeneration account. There is no documentary evidence formalizing these designations.

The People alleged that the loan payments Ivy Academia made after transferring the loan to EGeneration constituted both misappropriation of public moneys (§ 424, subd. (a); count 39) and embezzlement of public funds (§§ 504, 514; count 40).

V. Transfers of Funds to EGeneration

As noted above, Ivy Academia had three QuickBooks accounts recording amounts owed to Selivanov, Berkovich, and their business entities: Due to Management, Due to Academy, and Due to EGeneration. The latter two accounts, which documented debts to both the former (AJFK) and current (EGeneration) names of defendants’ other business entity, were consolidated in Ivy Academia’s QuickBooks in June 2008. After that point, the Due to Academy account was zeroed out.

Because the Due to Academy and Due to EGeneration accounts were eventually consolidated, and because AJFK and EGeneration were the same entity, prosecution witnesses treated these two accounts as one for purposes of determining the balance Ivy Academia owed to AJFK/EGeneration and, ultimately, Selivanov and Berkovich, the owners of that entity. Even though the Due to Management account also reflected money owed to defendants (their deferred salaries), neither the Ivy Academia QuickBooks nor the prosecution combined the Due to Management account with the Due to Academy or Due to EGeneration accounts. Defense expert Jan Goren opined that all three accounts should have been considered together because the amounts owed to defendants’ business entities ultimately were owed to defendants personally.

Prosecution witnesses Atkinson and Delos Santos testified that the combined balance of the Due to Academy and Due to EGeneration accounts reached zero on August 1, 2007, meaning that, at that point, Ivy Academia no longer owed money to AJFK and/or EGeneration. Ivy Academia subsequently made three large monetary transfers to EGeneration, however: $25,000 on August 1, 2007, $20,000 on November 19, 2007, and $20,000 on December 1, 2007. Shortly after the $25,000 transfer, EGeneration issued a $24,000 check to Selivanov, leaving EGeneration with a total of $1,540.65 in its bank account. Before the first $20,000 transfer in November 2007, EGeneration’s bank account balance dipped to $46.80. Following that transfer, EGeneration wrote a $7,000 check to Selivanov. Atkinson testified that absent the $20,000 transfer from Ivy Academia, EGeneration would not have had enough money to make the $7,000 payment. EGeneration’s bank account balance slipped to $3,386.53 before the final $20,000 transfer in December 2007; shortly after that payment was deposited into its bank account, EGeneration issued two checks totaling $15,300.

On April 1, 2008, the balance in the Due to EGeneration account was negative, meaning that EGeneration owed money to Ivy Academia. Ivy Academia nevertheless issued a $5,000 check to EGeneration that day.

The Due to EGeneration account balance was still negative on June 30, 2008. On that date, however, a liability of $237,000 was added to the account, turning its balance positive; now, the account showed that Ivy Academia owed $208,623 to EGeneration. The $237,000 liability was the total net amount of increased rent Ivy Academia owed from the effective date of the rent increase, July 1, 2007, through June 30, 2008. This additional liability was added to Ivy Academia’s QuickBooks three months before the rent increase was presented to and approved by the board.

After the balance of the Due to EGeneration account was bolstered by the addition of the retroactive rent liability, Ivy issued a series of small checks to EGeneration. On September 24, 2008, Ivy Academia issued a $5,000 check to EGeneration. It subsequently issued three additional checks to EGeneration: a $5,000 check on October 1, 2008, a $3,000 check on December 20, 2008, and a $5,000 check on March 16, 2009.

While all of the aforementioned transfers to EGeneration were being made, the amount owed to defendants as reflected in the Due to Management account remained unchanged at approximately $230,000. Prosecution witnesses Atkinson, Delos Santos, and Balbin and defense witness Goren all agreed that the amount due to defendants as documented in the Due to Management account exceeded the total amounts Ivy Academia transferred to EGeneration in 2007 and 2008. The balance of the Due to Management account was not reduced when any of the transfers to EGeneration were made, however, or at any time prior to 2008 and 2009, when Ivy Academia made several deferred salary payments directly to both defendants. Defendants ultimately directly received the full $230,000 in deferred salaries that the Due to Management account indicated they were owed.

The People alleged that Selivanov embezzled public funds by making the series of $5,000 and $3,000 transfers to EGeneration after the rent increase was added to the Due to EGeneration account (§§ 504, 514; count 8). They further alleged that each of the three larger transfers in 2007 constituted misappropriation of public moneys (§ 424, subd. (a); counts 18, 21, 24), embezzlement of public funds (§§ 504, 514; counts 19, 22, 25), and money laundering (§ 186.10, subd. (a); counts 20, 23, 26).

VI. Taxes

Defendants were charged with filing false personal and corporate income tax returns for the years 2004 through 2008. Prosecution witnesses Salazar and Delos Santos testified that defendants failed to report on their personal income tax returns the personal expenses they charged to Ivy Academia American Express cards from 2005 to 2008. Salazar and defense witness Goren both testified that any American Express charges constituting embezzlement or personal expenses should have been reported as taxable income, but proper school expenditures were not required to be reported. Delos Santos testified that defendants would have to report as personal income even those charges that did not benefit them personally, such as teacher appreciation dinners, because “they are in control of the credit card.” Salazar testified that defendants improperly reported $46,000 they received as payment of their deferred salaries on their 2008 EGeneration tax return rather than on their personal income tax return. Salazar further testified that defendants’ personal tax returns would be affected by improprieties on the corporate tax returns filed by AJFK/EGeneration, because “any income or losses would flow in to the individual return” since defendants were AJFK/EGeneration’s only members.

Salazar testified that AJFK/EGeneration’s tax returns for the years 2004 through 2008 contained numerous improprieties. In 2004, he testified, expenses shown in AJFK’s accounting books were both deducted on the AJFK tax return and recorded as amounts owing to AJFK in Ivy Academia’s Due to Academy account. Salazar opined the deductions taken by AJFK were improper because the expenses were double-booked. He also testified that the 2004 AJFK return contained $30,697.35 of deductions for “rent expenses,” even though the AJFK QuickBooks showed the amount claimed was spent on other items such as “Office Depot expense, Dominoes [sic| Pizza, car insurance, Coffee Bean items, [El] Pollo Foco.” According to Salazar, the 2004 AJFK tax return also overreported AJFK’s income because it included the October 19, 2004 $300,000 loan repayment from Ivy Academia as income, even though loan repayments are not income.

According to Salazar, the 2005 EGeneration return deducted $11,930 worth of “supplies expenses,” which Salazar testified consisted of “items like cheesecake, the car insurance, Victoria [sic] Secret, you know, the pretzel charges, pediatric care, and restaurant.” Salazar testified that the 2006, 2007, and 2008 returns contained similarly improper deductions for supplies. According to Salazar, the improperly deducted amounts in those years were, respectively, $11,461, $9,125, and $9,367. Salazar also testified that the 2007 EGeneration tax return failed to report as income $43,795.96 that Ivy Academia paid in excess of the amount it owed to EGeneration that year.

The People alleged that both Selivanov and Berkovich filed personal income tax returns that they did not believe to be true and correct as to every material matter in tax years 2004, 2005 , 2006, 2007, and 2008 (Rev. & Tax. Code, § 19705, subd. (a); counts 27-31). They further alleged that Selivanov filed tax returns for AJFK/EGeneration that he did not believe to be true and correct as to every material matter in tax years 2004, 2005, 2006, 2007, and 2008 (Rev. & Tax. Code, § 19705, subd. (a); counts 32-36).

DISCUSSION

I. American Express Charges Embezzlement Conviction (Count 2)

Both defendants challenge the section 504 embezzlement convictions stemming from their use of Ivy Academia American Express cards (count 2). Jointly, they contend there was insufficient evidence to establish that their use of the cards was fraudulent. They further contend that the court erred by failing to give a unanimity instruction and by failing to require the jury to find the amount taken exceeded $950. They argue that the cumulative effect of these two instructional errors deprived them of a fair trial. Defendants finally contend the court erred by finding at sentencing that the case involved ‘“public funds” within the meaning of section 514. We address these contentions in turn.

A. Sufficiency of the Evidence

“When a defendant challenges the sufficiency of the evidence, ‘ “[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.]’ [Citations.] ‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]’ [Citation.] We ‘ “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” [Citation.]’ [Citation.]” (People v. Clark (2011) 52 Cal.4th 856, 942-943 [131 Cal.Rptr.3d 225, 261 P.3d 243].)

The jury found defendants’ use of the Ivy Academia American Express cards constituted embezzlement within the meaning of section 504. That statute provides: “Every officer of this state, or of any county, city, city and county, or other municipal corporation or subdivision thereof, and every deputy, clerk, or servant of that officer, and every officer, director, trustee, clerk, servant, or agent of any association, society, or corporation (public or private), who fraudulently appropriates to any use or purpose not in the due and lawful execution of that person’s trust, any property in his or her possession or under his or her control by virtue of that trust, or secretes it with a fraudulent intent to appropriate it to that use or purpose, is guilty of embezzlement.” (§ 504.) As the language of the statute makes plain, “[t]he offense of embezzlement contemplates a principal’s entrustment of property to an agent for certain purposes and the agent’s breach of that trust by acting outside his authority in his use of the property.” (People v. Sisuphan (2010) 181 Cal.App.4th 800, 813-814 [104 Cal.Rptr.3d 654].) It further contemplates a relationship of trust and confidence between the perpetrator and the victim (People v. Wooten (1996) 44 Cal.App.4th 1834, 1845 [52 Cal.Rptr.2d 765]) and a breach of that trust and confidence by “conversion of trusted funds coupled with the intent to defraud” (In re Basinger (1988) 45 Cal. 3d 1348, 1363 [249 Cal.Rptr. 110, 756 P.2d 833]).

Defendants contend there was insufficient evidence from which the jury could conclude they acted with fraudulent intent or acted outside of their authority when using the American Express cards. We disagree.

“ ‘The intent essential to embezzlement is the intent to fraudulently appropriate the property to a use and purpose other than that for which it was entrusted, in other words, the intent to deprive the owner of his property ....’” (People v. McClain (1956) 140 Cal.App.2d 899, 900 [295 P.2d 952].) “It is well established that intent to defraud may be inferred from the circumstances surrounding the transaction in question.” (People v. Eddington (1962) 201 Cal.App.2d 574, 579 [20 Cal.Rptr. 122]; 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 35, pp. 59-60.) The circumstances surrounding the credit card transactions identified as “questionable” provided a sufficient basis from which the jury could infer defendants acted with fraudulent intent. The People presented evidence that defendants used their Ivy Academia credit cards at restaurants to purchase meals for “business meetings” that occurred late at night and on weekend afternoons, and that these purchases were recorded in Ivy Academia’s accounting books in categories including “utilities and housekeeping,” “school supplies,” and “dues and subscriptions.” They also presented evidence that defendants charged large sums at bowling alleys and restaurants for “teacher appreciation” events, and that such events were not proper “educational purposes” for which a charter school permissibly could spend money. Even though Pilyavskaya, not defendants, prepared the expense reports and QuickBooks entries documenting these charges, she reported to Selivanov, who also had access to the QuickBooks, and the reports she prepared bear defendants’ signatures. Additionally, the People presented evidence that Berkovich boasted about her “unlimited” credit card and her aspirations of becoming a millionaire by opening more charter schools, and that Selivanov sought to have Ivy Academia’s independent auditors remove negative comments about defendants’ credit card usage from their 2006 report. The jury readily could conclude from all of this evidence that defendants acted with fraudulent intent when using the American Express cards.

The jury likewise reasonably could conclude defendants acted outside the scope of their authority as Ivy Academia’s operators when making the challenged charges. Defendants assert (without citation to authority) that Boardmember Sarkisian’s review and approval of the expense reports constituted express authority for the challenged charges. Defendants further suggest that LAUSD’s failure to inform them of its concerns about the credit card charges, and the People’s failure to call Ivy Academia’s auditors as witnesses at trial demonstrate defendants’ authority to make the charges. We are not persuaded. The People adduced evidence that charter schools operate under the authority not only of their own charters and governing boards but also the broader umbrella of the LAUSD Charter Schools Division. According to prosecution witnesses Eairleywine and Smith, LAUSD and the Los Angeles County Office of Education generally did not classify “activities for the pleasure of faculty and teachers and staff such as bowling,” and “after hours dinners off campus” as expenses that charter schools and their operators were authorized to make. The jury was entitled to credit this substantial evidence and infer from it that defendants lacked the authority to use the credit cards as they did, whether the board signed off on the expenditures or not. The jury was not, as defendants suggest, required to draw the opposite inference from LAUSD’s silence about its concerns or the People’s failure to call Ivy Academia’s auditors as witnesses.

B. Unanimity Instruction

Defendants contend the trial court’s failure to give a unanimity instruction on count 2 constituted prejudicial error. We review assertions of instructional error de novo. (People v. Shaw (2002) 97 Cal.App.4th 833, 838 [118 Cal.Rptr.2d 678].) Whether the trial court should have given a “particular instruction in any particular case entails the resolution of a mixed question of law and fact,” which is “predominantly legal.” (People v. Waidla (2000) 22 Cal.4th 690, 733 [94 Cal.Rptr.2d 396, 996 P.2d 46].) Accordingly, we examine the issue without deference. (Ibid.)

In a criminal case, a jury verdict must be unanimous. (People v. Collins (1976) 17 Cal.3d 687, 693 [131 Cal.Rptr. 782, 552 P.2d 742]; Cal. Const., art. I, § 16.) This means that each individual juror must agree the defendant committed a specific offense. (People v. Russo (2001) 25 Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436, 25 P.3d 641].) Thus, “when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” {Ibid.) The court generally has a sua sponte duty to give a unanimity instruction where, as here, the prosecution did not elect among the criminal acts alleged. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 [70 Cal.Rptr.2d 878]; People v. Jennings (2010) 50 Cal.4th 616, 679 [114 Cal.Rptr.3d 133, 237 P.3d 474].) There are several exceptions to this rule, however. “For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation], or ‘when ... the statute contemplates a continuous course of conduct or a series of acts over a period of time’ [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime. [Citation.]” (People v. Jennings, supra, 50 Cal.4th at p. 679.)

Defendants contend “the way the case was presented to the jury showed [a unanimity] instruction was appropriate and required.” They further assert, without citation to the record, that they “never defended the case as if the transactions were part of a single course of conduct.” We disagree.

From the outset of the trial, all parties characterized the American Express charges as a single, continuing course of conduct. The People told the jury in their opening statement that the credit card charges constituted “basically one series of incidents, one course of conduct,” and that they would ask the jury to make “the determination” that the expenditures were for “personal purchases that did not benefit the school and were not for school purpose.” Defendants similarly characterized the numerous charges monolithically in their opening statements. Thus, Selivanov told the jury the evidence would show “that he acted in good faith, in the best interest of the school,” and that no one—not the board, the independent auditors, or LAUSD—ever informed him “those types of purchases were prohibited.” Berkovich took a different tack, but it too was a unified one. She asserted that “Everything was a school purpose, and if mistakes were made, . . . [t]he evidence is going to show that, but that is not criminal.”

Opening statements are not argument. But they do “ ‘prepare the minds of the jury to follow the evidence and to more readily discern its materiality, force, and effect.’ ” (People v. Harris (1989) 47 Cal.3d 1047, 1080 [255 Cal.Rptr. 352, 767 P.2d 619].) And here, defendants continued to urge the jury to find all of the credit card charges permissible under a single theory. Berkovich told the court at sidebar that her sole defense was “that everything Miss Berkovich bought had a school purpose. And if it didn’t have a school purpose, it was a recognized mistake that was reimbursed and that is the defense.” She told the jury the same thing during her closing argument, arguing that “all these expenses, teacher appreciation that the prosecution thinks should not happen, meals, community outreach, networking, they are all expenses that are common in the industry.”

Selivanov likewise presented a single defense to all of the credit card charges during his closing. He argued that the sole issue was “whether or not Mr. Selivanov intended to defraud Ivy Academia with respect to purchasing things on the American Express card,” and that “there is no evidence of an intent to defraud.” Both defendants emphasized that all of the charges, not merely some subset of them, were reviewed and approved by other individuals and entities. In short, they offered essentially the same defense to all of the acts. (See People v. Jennings, supra, 50 Cal.4th at p. 679; People v. Thompson (1995) 36 Cal.App.4th 843, 851 [42 Cal.Rptr.2d 798].)

Defendants claim that the People deviated from the single course-of-conduct theory during rebuttal argument, thereby rendering a unanimity instruction necessary. In support, they point to four comments, three of which suggested that defense witnesses with ties to the charter school movement were biased. We are not persuaded. An attorney is permitted “to remind the jurors that a paid witness may accordingly be biased and is also allowed to argue, from the evidence, that a witness’s testimony is unbelievable, unsound, or even a patent ‘lie.’ ” (People v. Arias (1996) 13 Cal.4th 92, 162 [51 Cal.Rptr.2d 770, 913 P.2d 980].) In attempting to characterize defense witnesses as biased, the People were asking the jurors to reject their testimony, not presenting multiple arguments as to why the credit card charges constituted embezzlement.

Defendants similarly take out of context the fourth comment, a remark by the prosecutor that the $995 Tax Secrets seminar Berkovich purchased with the credit card was “an embezzlement in itself.” The People made this statement as part of an apparent effort to distinguish between the section 424 misappropriation and section 504 embezzlement counts stemming from defendants’ usage of the credit cards. The People informed the jury that “the embezzlement charge does carry a minimum of $950. So, as such, one would have to find that the theft was $950 or more. Which, in this case, we the People would submit it is heavily substantiated just in terms of the charges. Now, in terms of a misappropriation of funds, there is no minimum limit on that. There is no $950 minimum, but we would submit, ladies and gentlemen, in terms of this case here that even the Tax Secret, even the Tax Secret item that was bought for $950 [ sic\, that is an embezzlement in itself.” These comments do not undermine the People’s general approach to the charges, nor do they persuade us a unanimity instruction was necessary.

C. Value of Embezzled Property

Defendants contend their convictions for felony embezzlement in count 2 must be reversed or reduced to misdemeanors because the jury failed to specify a loss greater than $950 on the verdict forms. Defendants argue that because the verdict form simply stated that the embezzlement was a felony, it “created a de facto directed verdict on an element of the offense in violation of [their] equal protection and due process rights.” This error, they contend, lessened the People’s burden of proof and therefore requires reversal. In the alternative, they contend that the jury’s failure to find that the embezzlement in count 2 was grand or petty theft, or to determine that the value of the property embezzled exceeded $950, requires that their convictions be deemed to be for petty theft and reduced to misdemeanors. For this argument they rely on section 1157, which states: “Whenever a defendant is convicted of a crime . . . which is distinguished into degrees, the jury . . . must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury ... to so determine, the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree.” (§ 1157.) We do not find either argument persuasive.

Section 490a provides that the term embezzlement “shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.” “Theft is divided into two degrees, the first of which is termed grand theft; the second, petty theft.” (§ 486.) Since embezzlement is theft and theft is divided into two degrees, it follows that embezzlement likewise is divided into two degrees. As the court explained in People v. Stanfill (1999) 76 Cal.App.4th 1137, 1143 [90 Cal.Rptr.2d 885], “Embezzlement is a form of ‘theft’ (§ 490a) and, with exceptions not pertinent here, is made punishable with state prison time only if the use value of the subject property exceeds [$950] .”

Count 2 of the information alleged that defendants committed felony embezzlement in violation of section 504 and that the property embezzled had a “value exceeding Nine Hundred Fifty Dollars ($950) to wit: credit card charges made to Ivy Academia’s American Express account.” In keeping with the felony allegation, the court instructed the jury with a modified version of CALCRIM No. 1806 that effectively equated “felony” embezzlement with “grand theft by embezzlement.” That instruction read in pertinent part: “The defendant is charged in Counts [sic] with grand theft by embezzlement in violation of Penal Code section 504.” The court also defined grand theft both orally and in writing with CALCRIM No. 1801, which provided in pertinent part: “If you conclude that the defendant committed a theft, you must decide whether the crime was grand theft or petty theft. The defendant committed grand theft if he or she stole property worth more than $950. [¶] . . . [¶] All other theft