Harris v. Garcia (734 F. Supp. 2d 973, 2010)

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S WRIT FOR HABEAS CORPUS

RONALD M. WHYTE, District Judge.

On April 9, 1997, petitioner was convicted of two counts of grand theft, one count of attempting to dissuade a witness in furtherance of a conspiracy, one count of access card forgery, and one count of escape from a county jail. After unsuccessfully seeking relief in the California courts, he filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging all five convictions. This court found that the petition stated eleven cognizable claims under § 2254 and issued an order to show cause why this court should not grant the writ. Respondent filed an answer addressing the merits of the petition, and petitioner filed a traverse. Thereafter, on September 18, 2007, the court ordered respondent to file a supplemental answer showing cause why the petition should not be granted based upon an additional claim raised in petitioner’s amended petition, which claim challenges petitioner’s sentence. Respondent filed a supplemental answer, and petitioner filed a supplemental traverse.

After reviewing the papers and the record, the court finds that petitioner is entitled to habeas corpus relief as to his conviction of one of the two counts of grand theft. Accordingly, the court grants the petition to the extent it seeks relief from the state court judgment on that count. The court finds, however, that petitioner is not entitled to habeas corpus relief with respect to his conviction on the four remaining counts, and denies his petition with respect to his conviction on such counts. Based upon the sentences he received on the four remaining counts, upon which habeas relief is not granted, petitioner’s continued custody in is lawful.

BACKGROUND

On March 18, 1997, petitioner was brought to trial on five separate felony charges, and allegations of four prior “strike” convictions. Four of the five charges against petitioner stemmed from his and his girlfriend’s (Gina Miller) relationships with a series of elderly gentlemen, whom the couple was accused of defrauding. The prosecution formally charged petitioner and Miller with grand theft by false pretenses from two such gentlemen, Nicholas Brayevieh and Wilbur Johnson, and additionally introduced evidence of three uncharged similar incidents involving Ned Wyss, Robert Dodd, and Jack McCallister. In addition to the theft charges, petitioner was charged with access card forgery with respect to Wilbur Johnson, and both petitioner and Miller were charged with attempting to dissuade Nicholas Brayevieh from testifying. Petitioner was also charged with escaping from the Santa Clara County jail while awaiting trial on the above charges.

Petitioner and Miller were tried together, and the evidence admitted against them was voluminous. The California Court of Appeal summarized the evidence presented to the jury in a “much abridged” format as follows:

Nicholas Brayevieh, Counts I-J

In September 1994, 84-year-old bachelor Nicholas Brayevieh shared a house with his sister Stella in the Willow Glen area of San Jose. The day after Stella was moved into a convalescent hospital and Brayevieh was left alone in them house, defendant Miller, a total stranger, approached him as he was gardening, identified herself as Selena Bay, and asked to use his bathroom. Brayevieh allowed her to do so, and after she came out the two stood in the kitchen and talked.

Miller repeated the visit a few days later, and continued to visit Brayevieh, uninvited, on a regular basis. She arrived and left by taxi and did not explain the reason for her visits. From questioning Brayevieh, she found out that one of his sisters was dead and the other was in a convalescent hospital. She asked whether he was lonely. She told him that she was from Greece and was alone in this country. She said she had no family and she was single, a virgin, and that she also lived alone.

The second time Miller came to Brayevich’s house, he saw her “opening drawers and shuffling through clothing and this and that, looking in the closets.” Brayevieh “should have objected”, but he thought she was “young” and “innocently curious”. Nevertheless, he also thought she was “quite audacious,” rummaging through drawers where he kept his business records.

Once, he was surprised to see Miller at the convalescent hospital standing at the door of Stella’s room looking in at her. Miller had not accompanied Brayevieh to the hospital nor had she told him she was planning to go there.

About the sixth or seventh time Miller visited Brayevieh, she brought along [petitioner] Harris, whom she introduced as “Sam,” an “old” and she implied, undesirable friend from Los Angeles. She never admitted Harris was her boyfriend and “scoffed at the idea” when Brayevieh asked if she were married to him.

In reality, she was living with defendant Harris “as husband and wife” along with her two children, three-year-old Moses and four- or five-year-old Eric. Harris had been her boyfriend for four or five years and they had lived together in Los Angeles, San Carlos, and several addresses each in Sunnyvale, San Jose, and Campbell.

Brayevieh regularly received money from his investments and had accounts at Bank of the West, American Savings, and Smith Barney, among other financial institutions. He lived frugally, paying cash or “do[ing] without.” He did not shop at expensive stores like Nordstrom’s, Macy’s, or the Emporium. Miller convinced him to apply for credit cards, and to take her shopping at various department stores. She “knew the best places” to shop. “Generally I followed her like a faithful puppy and she would go ahead of me and do the shopping.”

Miller asked for and received cash (she had a “liking for hundred dollar bills”), which Brayevich took from bank accounts, his Smith Barney account, and as cash advances on his recently-acquired American Express and Union 76 credit cards. The cash amounts ranged from $500 to $25,000.

Miller also asked for and received a cashier’s check for $51,815 for a down payment on a house, a $45,000 Chevy Suburban (to which Brayevich retained title in his name), almost $8,000 for a 1977 Mercedes convertible and a new top, a television set and stereo equipment costing $5,651.95, and a $21,249.90 diamond “engagement” ring. Miller told Brayevich the ring would make their relationship more “bonding” or “binding”.

Brayevich never intended to marry Miller even though she talked about doing so. Brayevich admitted to a “sexual” relationship with Miller, but it consisted of hugging, kissing, and back rubbing. Miller always wore underwear, at least, and there was no sexual intercourse. Brayevich spent money on Miller because he wanted to “put a hold on her” and keep her affection.

In addition, Brayevich gave Harris cash because he thought Miller wanted him to and paid credit card bills for vehicle rentals, airplane tickets, jewelry, clothing, and other articles run up by Miller and Harris without permission.

Brayevich eventually realized defendants were engaged in a “skin game” and they “were out to get as much money” as possible from him. He would never have maintained the relationship and he would not have given Miller and Harris money if he had known that Miller used different names, had two children, and was living with Harris.

The “gig [was] up” as Brayevich put it when Brayevich’s nephew and next door neighbor, Ilko Vucia, called the San Jose police. On April 5, 1995, Officer Gordon Bowen contacted Brayevich who introduced Miller, who was visiting him, as Selena Bay. Bowen set up surveillance around Brayevich’s house and observed Miller leave the residence, walk around the corner and get into a car which drove off. It appeared that she had prearranged for someone to pick her up.

On August 16, 1995, Bowen and his partner contacted Brayevich and Miller as she drove Brayevich’s car into his driveway. Brayevich was upset and walked to the side of the house. Miller identified herself to Bowen as “Selena Brayevich” and said she had no driver’s license. She became angry and aggressive when Bowen said he knew her name was not Brayevich. She eventually identified herself to officers as Gina Miller and was fingerprinted and photographed.

On August 24, 1995, Bowen and Officer Peter Scanlan contacted Brayevich and informed him of Miller’s identity and the existence of her two small children. Brayevich told Scanlan that Miller said she was a virgin. He did not understand “how could a young lady be so deceitful.” Scanlan said Brayevich seemed both “sad” and “somewhat relieved” that he knew the truth about Miller and Harris. Brayevich immediately stopped spending money on them.

In September 1995, Brayevich received several telephone calls from [petitioner and Miller]. Scanlan provided him with a tape recorder and he taped a number of the calls. Harris wanted to know if Brayevich was going to “press charges” and asked him to lie to .the police because he had enough problems. Miller called Brayevich and asked him “to forget the whole thing.” She told him she loved him and cared for him, and that he “gotta stop those cops honey.” Eventually, she wound up saying “if I go to jail, I’m gonna kill you! I swear! I don’t want to go to jail honey. I don’t want to.”

Wilbur Johnson, Counts 5 and 6

Eighty-two-year old Wilbur Johnson was a retired accountant who lived on a fixed income and who was very careful with his money. Two months before Wilbur died in November 1995, his son, Dave, who was accustomed to sending a lot of time with his father, moved in and lived with him until his death.

Afterward, Dave found various charge receipts among Wilbur’s papers for the purchase of items which Wilbur would not have used himself. These included the purchase of a cellular telephone, accessories, and service even though Dave had never seen Wilbur with a cellular telephone. There were charges from Bare Essentials amounting to $271.73, and charges of women’s and children’s clothing from Mervyn’s ($483.77) and the Emporium.

On July 15, 1995, a few months before his death, Wilbur used his Visa account to charge furniture costing $886.99 at the Bedroom Store. The sales receipt showed it was delivered to [petitioner and Millers’] Sunnyvale Avenue address and it was found in [petitioner’s] house by the police when it was searched the following August. Receipts for items purchased on Wilbur’s charge accounts were also found in defendants’ residence. Cellular telephone charges on Wilbur’s credit card accounts corresponded to numbers used by [petitioner and Miller] and not Wilbur. Wilbur never mentioned [petitioner and Miller] to Dave.

On an earlier occasion, on June 12, 1995, Wilbur, accompanied by [petitioner] who was using the name, “Michael Marcos,” came into the Circuit City store on Stevens Creek and bought the cellular telephone. Wilbur signed the credit card charge slip for the $221.53 initial purchase and identified himself with a social security card and a driver’s license. On June 28,1995, Michael Marcos traded in the analog telephone for a store credit and bought a digital telephone which cost an additional $113. A second trade-in for a more expensive model costing an additional $89 took place on August 16,1995. Michael Marcos also added a performance guarantee and a cigarette lighter adapter. The clerk allowed Michael Marcos to obtain a store credit for the initial purchase because Marcos was with Wilbur Johnson when the initial transaction occurred. The subsequent purchase was made partially with funds charged to Wilbur’s account.

Evidence of Common Scheme or Plan

1. Jack McCallister

Around October 1995, 78-year old Jack McCallister was walking in a Safeway store parking lot in Campbell when two young women came up behind him and started a conversation. One called him “Fred” and told him she thought he was someone she knew. She introduced the other woman and then asked McCallister for his telephone number or address so she could take him out to dinner. He made an appointment with her.

However, he told his daughter, Jill Genestra, about the incident. She was out of sight in the kitchen when the two women showed up at McCallister’s home. After asking if he was alone, both women appeared surprised and tense when he said his daughter was there and she walked into the room. The women refused to give their names and show identification. After more questioning by Genestra, McCallister’s two sons-in-law arrived and Genestra asked the women to leave. They drove away in an older model white Cadillac. Several months later, Genestra saw a newspaper article with a photograph of a woman resembling one of the two persons who invited her father to dinner. McCallister recognized the photograph in the newspaper as resembling the woman who approached him in the parking lot but neither he nor Genestra could identify Miller in court.

2. Robert Dodd

In the summer of 1995, 79-year-old Robert Dodd met a woman who identified herself as “Savanna” as he was dining alone in a Lyon’s restaurant in Sunnyvale. She convinced him she was alone and without money or any place to stay with her two children, Eric and Moses.

Dodd allowed her to spend a night or two at his house (they slept in the same bed but there was no sex) and then booked them into a motel. Dodd paid for Eric and Moses to visit the dentist and took Savanna shopping to purchase clothing for them. He paid for the motel bills, telephone calls, nanny services, and some jewelry, but only “nickel or dime stuff.” In the four to six months he knew Savanna he spent about $5,000 on her. He had to mortgage one of his homes to pay the expenses he incurred on her behalf. He had intended to sell that house in any event. He last saw her in the beginning of October 1995, two weeks before he was interviewed by Officer Scanlan. He never saw her again. He could not identify Miller in court.

3. Ned Wyss

In January 1994, Miller approached 89-year-old retired widower Ned Wyss in a Lucky grocery store in Cathedral City near Palm Springs. She identified herself as “Selena” and said she wanted to get to know him. She had a young child named “Moses” with her. Wyss ignored her. As he walked away, she said, “come on, be nice. Can you give me your name and phone number ...”

Wyss obliged. He talked to her for about 15 minutes and gave her his phone number. She called him the next day and asked him to buy food for her children. She met him at the Lucky store where he purchased groceries for her. She then told him she lived with an uncle who wanted her to move out. Wyss verified this by telephoning the uncle at a number Miller gave him, then they drove to an apartment complex where they met [petitioner] whom Miller introduced as the apartment manager and her friend.

Harris told Wyss it would cost $900 for Miller to rent an apartment. Wyss produced the money the next day.

Miller invited Wyss to dinner at [petitioner’s] apartment in the same complex as the apartment she leased and introduced him to a woman who was supposed to be [petitioner’s] wife. [Petitioner] and Miller “had the run of [Wyss’s] house,” and they became “pretty good friends” with him. Miller and [petitioner] often spoke to each other in a foreign language and Miller told Wyss she spoke Russian. Miller eventually identified herself as “Selena McGill.” “McGill” was the surname of [petitioner’s] father which [petitioner] occasionally used.

Miller “was always trying to be amorous” with Wyss, including trying to kiss him. However, he rebuffed her. On one occasion after taking a shower, she emerged from his bathroom wrapped in a towel. She stood in front of him and dropped it. He told her to “get going.” Miller said she wanted to marry him and asked him to buy her an engagement ring. Wyss laughed and absolutely refused, but, nevertheless, Miller introduced him as her fiancé.

[Petitioner] asked to borrow a credit card for gasoline and then “disappears” for two or three weeks while he ran up a “tremendous” amount of charges. [Petitioner] asked Wyss to cosign a credit card application so [petitioner] could establish his own credit history. Wyss did so and Harris charged between $20,000 and $30,000 on the account. [Petitioner] also charged a $14,000 Rolex watch to Wyss’s account without authorization.

Before Wyss met [petitioner and Miller] he never kept a credit card balance and he had no outstanding debts. He owned a trailer home in Cathedral City and a condominium in Los Angeles which he purchased with cash. When Wyss received the bills for purchases signed by [petitioner] and confronted him about the charges, [petitioner] suggested Wyss get a loan on his condominium to pay the charges. [Petitioner and Miller] also promised to pay the charges but never did so. When Wyss said he was going to call the police, Miller told him he should not do so. After that, they disappeared. Wyss eventually mortgaged his condominium to pay the bills. However, as the charges mounted, he was forced to file for bankruptcy and lost his condominium.

Harris’s Escape

On February 16, 1996, [petitioner] was an inmate in a Santa Clara County jail dormitory with Jamie Owen, who was due to be released that evening, and Dana Mulvani. Mulvani pointed out that Owen and [petitioner] bore a strong resemblance to each other.

[Petitioner] offered Owen $5,000 to switch identities with him so that [petitioner] would be released instead of Owen. Owen expressed reservations about the idea, but [petitioner] both cajoled and threatened him, saying that he knew where Owen’s family lived.

The two men exchanged wrist bands, and Owen provided [petitioner] with the personal information he would need to pass through the jail release procedure. [Petitioner] was fingerprinted and then released around 12:40 a.m. Three or four hours later, Owen contacted jail guards saying he had slept through his release call. [Petitioner] was rearrested around June 6, 1996, in the Beverly Hills area.

People v. Miller, No. H017020, Slip Op. at 2-9 (Cal.Ct.App. June 7, 2000) (hereinafter “Slip Op.”).

On April 9, 1997, the jury found petitioner guilty of grand theft as to Brayevich (Cal. Pen.Code § 487) with an enhancement for taking property valued at more than $150,000 (Cal. PemCode § 12022.6(b)), attempting to dissuade a witness (Brayevich) in furtherance of a conspiracy, (Cal. Pen.Code § 136.1(c)(2)), access card forgery relating to Wilbur Johnson (Cal. Pen.Code § 484f(b)), grand theft from Johnson (Cal. PemCode § 487), and escape from a county jail (Cal. Pen. Code § 4532(b)(1)). A bench trial then commenced on petitioner’s four prior “strike convictions” (Cal. Pen.Code § § 667(a), 1170.12(b)(c)). On April 10, 1997, the trial court found these allegations true.

The trial judge sentenced petitioner to three consecutive prison terms of 25 years to life Count One (grand theft from Brayevich), Count Five (grand theft from Johnson), and Count Seven (escape from county jail). The judge also sentenced petitioner to a sentence of 25 years to life on Count 2 (attempting to dissuade a witness), to run concurrently with the sentence on Count One, and to a sentence of 25 years to life on Count Six (access card forgery), stayed pursuant to Penal Code section 654 (which prohibits multiple punishment for the same conduct). Additionally, the trial court sentenced petitioner to a consecutive two-year term for the excessive taking enhancement.

Petitioner appealed to the California Court of Appeal, Sixth Appellate District. The appellate court affirmed his conviction and sentence in a partially published opinion on June 7, 2000. Petitioner sought review from the Supreme Court of California. The Court denied review on September 20, 2000. Petitioner filed this writ seeking habeas relief on December 18, 2001. On July 28, 2003, respondent filed an answer addressing the merits of the petition, and on August 27, 2003, petitioner filed a traverse. Thereafter, petitioner exhausted an additional claim challenging the use of his prior convictions as “strikes” by raising such claim in an unsuccessful a habeas petition filed in the California Supreme Court. Petitioner then raised this in an amended petition filed in this court on June 12, 2007. Respondent filed a supplemental answer on October 23, 2007 addressing the additional claim, and petitioner filed a supplemental traverse January 10, 2008.

DISCUSSION

A. Standard of Review

This court will entertain a petition for writ of habeas corpus, “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The court may not grant a petition with respect to any claim that was adjudicated on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “Under the ‘unreasonable application clause,’ a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. “[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495.

A federal habeas court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. The “objectively unreasonable” standard does not equate to “clear error” because “[tjhese two standards ... are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

While a state court decision may no longer be overturned on habeas review simply because of a conflict with circuit-based law, circuit decisions may still be relevant as persuasive authority to determine whether a particular state court holding is an “unreasonable application” of Supreme Court precedent or to assess what law is “clearly established.” Clark v. Murphy, 331 F.3d 1062, 1070-71 (9th Cir.2003).

B. Analysis of Legal Claims

As grounds for federal habeas relief petitioner asserts that: (1) there was insufficient evidence to convict him of theft by false pretenses as to Nicholas Brayevich; (2) the trial court failed to instruct the jury of the need for corroborating evidence as to the grand theft count; (3) there was insufficient evidence to convict him of access card forgery; (4) there was insufficient evidence to convict him of theft as to Wilbur Johnson; (5) the trial court erroneously admitted evidence of uncharged acts of misconduct; (6) there was insufficient evidence to convict him of attempting to dissuade a witness or victim; (7) the trial court failed to instruct the jury on the lesser included offense of misdemeanor attempting to dissuade a witness or victim; (8) the trial court gave confusing and conflicting instructions on the offense of attempting to dissuade a witness or victim; (9) the trial court failed to instruct on the necessary element of attempt on the attempting to dissuade a witness charge; (10) there was insufficient evidence to convict him of escape; (11) the admission of hearsay testimony regarding his escape offense violated his right to confront and cross-examine his accusers and his right to due process; and (12) his sentence violates his right to due process because the trial court did not prove beyond a reasonable doubt that his prior convictions qualified as “strikes” under California’s “three strikes” law.

1. Sufficiency of Evidence Supporting Theft By False Pretenses Conviction (Nicholas Brayevich)

Petitioner asserts that the evidence adduced at trial was insufficient to support any of his five convictions. He first claims that the evidence introduced at trial was insufficient to support his conviction of theft by false pretenses as to Nicholas Brayevich. In particular, he contends that there was insufficient evidence to support this conviction because there was no competent evidence corroborating Brayevich’s testimony regarding co-defendant Miller’s oral false pretenses.

The Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt e states a constitutional claim, which, if proven, entitles him to federal habeas relief, see Jackson v. Virginia, 443 U.S. 307, 321, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir.1992). The federal court “determines only whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” See id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781.

Sufficiency claims are judged by looking at the elements of the crime under state law. Jackson, 443 U.S. at 324, n. 16, 99 S.Ct. 2781. Under California law, a theft conviction on the theory of false pretenses requires proof that:

(1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation. In this context, reliance means that the false representation ‘materially influenced’ the owner’s decision to part with his property; it need not be the sole factor motivating the transfer. A victim does not rely on a false representation if ‘there is no causal connection shown between the [representations] alleged to be false’ and the transfer of property. Thus, if the defendant makes both true and false statements to the owner, but the false statements are irrelevant to the owner’s decision to transfer the property, theft on the theory of false pretense has not been committed. Reliance may be inferred from all the circumstances.

People v. Wooten, 44 Cal.App.4th 1834, 1842-43, 52 Cal.Rptr.2d 765 (1996) (citations omitted).

Moreover, if the conviction rests primarily on the testimony of a single witness that the false pretense was made, the making of the pretense must be corroborated. CaLPenal Code § 1110. The corroboration required by Penal Code section 1110 is of the making of the pretense. Id. The circumstances connected with the transaction, the entire conduct of the defendant, and his declarations to other persons may be looked to for the corroborative evidence contemplated by the law. People v. Randono, 32 Cal.App.3d 164, 173, 108 Cal.Rptr. 326 (1973). The defendant cannot be convicted “unless the pretense is proven by the testimony of two witnesses, or that of one witness and corroborating circumstances.” Cal.Penal Code § 532(b). Corroborating evidence is sufficient if it tends to connect the defendant with the commission of a crime in such a way so as to reasonably satisfy the jury that the complaining witness is telling the truth; the corroboration is inadequate if it requires aid from the testimony of the witnesses to be corroborated to connect the defendant with the alleged offense. People v. Fujita, 43 Cal.App.3d 454, 470, 117 Cal.Rptr. 757 (1974); People v. MacEwing, 45 Cal.2d 218, 225, 288 P.2d 257 (1955). Corroborative evidence may be found in the circumstances connected with the transaction, the conduct of the defendant, and his declarations to other persons. Fujita, 43 Cal.App.3d at 470, 117 Cal.Rptr. 757; Randono, 32 Cal.App.3d at 173, 108 Cal.Rptr. 326. Because the corroborative evidence need only tend to implicate the defendant in the alleged illegal activity, it may be slight and entitled to little weight standing alone. Fujita, 43 Cal.App.3d at 470, 117 Cal.Rptr. 757.

At trial, Nicholas Brayevieh testified at length regarding his relationships with co-defendant Gina Miller and with petitioner. Brayevieh stated that his decision to part with over $150,000 was based largely on Miller’s representations that she was single, living alone, had no children, and did not have a romantic relationship with petitioner. Nevertheless, petitioner argues, there was no competent evidence admissible against him corroborating Brayevich’s testimony regarding Miller’s oral misrepresentations. The California appellate court rejected this contention, finding that evidence regarding the Wyss, Dodd, and McAllister incidents was sufficient to provide the corroboration required by Penal Code section 532(b).

As summarized above, eighty-two-year old Ned Wyss testified that Miller approached him while shopping alone at a Lucky grocery store near Palm Springs, and the two thereafter developed a relationship. During the course of this relationship, Miller misrepresented both her name (she identified herself as ‘Selena McGill’), and her connection with petitioner (whom she introduced as her apartment manager and friend). After borrowing Wyss’s credit card, petitioner disappeared for two to three weeks and ran up a “tremendous” amount of charges. Wyss also testified that petitioner asked him to cosign a credit card application, then charged $20,000 to $30,000 on the account. Petitioner also charged a $14,000 Rolex watch to Wyss’s account without authorization.

Seventy-nine-year old Robert Dodd testified that he was approached by a woman who identified herself as ‘Savanna’ when dining alone at a Lyon’s restaurant in Sunnyvale. ‘Savanna’ represented that she was alone and without any money or place to stay with her two children, Eric and Moses. During a relationship that lasted approximately four to six months, Dodd spent about $5,000 on ‘Savanna.’

Seventy-eight-year old Jack McAllister testified that two women approached him in a Safeway parking lot in Campbell and engaged him in conversation. One of the two women asked to take him out to dinner. The dinner engagement was later broken by McAllister’s daughter, Jill Genestra, when the women arrived at McAllister’s home and refused to give their names. Genestra later saw Miller’s photograph in the newspaper and thought the woman in the photograph resembled one of the women who had approached her father.

The testimony of Messrs. Wyss, Dodd and McAllister tends to show that Miller had a practice of approaching elderly men who appeared to be living on their own, giving them a false name, and attempting to develop a relationship with them based on their sympathy, and, in some cases, their sexual desires. Miller heightened these feelings by misrepresenting that she was without both resources and romantic entanglements, including such an entanglement with petitioner, whom she introduced to Brayevich as a Mend and to Wyss as a Mend and apartment manager. The court finds this testimony sufficient to corroborate Brayevich’s allegations that Miller and petitioner misrepresented Miller’s identity and personal circumstances, including the nature of Miller’s relationship with petitioner.

Apparently anticipating an argument by respondent to the contrary, Harris’s petition argues at length that Brayevich’s testimony concerning co-defendant Miller’s false representations was not corroborated by a taped conversation that occurred between Miller and Brayevich on September 22, 1995. The emphasis petitioner places on the admissibility of this taped conversation appears misplaced for several reasons.

First, the appellate court did not rely on this conversation to reach its conclusion that section 532(b)’s corroboration requirement had been met. Second, although the record is somewhat ambiguous on this point, it appears that the jury could have interpreted certain of the trial judge’s admonishments and instructions as precluding its consideration of statements made by co-defendant Miller subsequent to petitioner’s arrest (including the September 22, 1995, conversation between Miller and Brayevich) against petitioner. If the jury thus interpreted the admonishments and instructions, it, like the appellate court, did not rely on the conversation to reach its conclusion that section 532(b)’s corroboration requirement was satisfied. Finally, for the reasons discussed below, the taped conversation did corroborate Miller’s earlier alleged false representations, and it was admissible evidence that could be used against petitioner.

The conversation contained the following exchanges between Brayevich and Miller:

Miller: I don’t know what you want from me? I don’t understand. Look, the only thing I gave you was sex.

Brayevich: Sex? What kind of sex? What was all this bull about you being a virgin and everything ... and then ... the truth comes out that you had two kids.

Miller: Wait a second sweetheart, I didn’t have no sex; I’m not even married. I live on my own. Okay?

Brayevich: Then what’s all this about you having two kids?

Miller: I don’t have two kids. They’re lying to you

Miller: Listen Nicky, wait a second, I don’t want you to be thinking that I was married, because I’m not. And I don’t have children.

Brayevich: Oh? You don’t have children?

Miller: No.

Miller: The reason I didn’t tell you my real name is because I figured you wouldn’t go out with me ...

(Answer to Petition for Writ of Habeas Corpus (“Answer”), Exhibit E, lodged April 22, 2004.)

Petitioner’s arguments to the contrary notwithstanding, a logical inference can be made from Miller’s statements during this recorded conversation that she had, in the past, represented to Brayevich that she had no children, was a virgin, and lived alone. As such, this conversation does corroborate Brayevich’s testimony regarding Miller’s false representations.

Petitioner asserts that, even if co-defendant’s statements during the September 22, 1995, conversation implicitly corroborate her alleged prior false representations, the taped conversation was inadmissible for two reasons. First, petitioner argues that Miller’s tape recorded statements were out-of-court statements of an accomplice, which themselves must be corroborated under the accomplice rule contained in California Penal Code § 1111 (“section 1111”) before they can be used against him. He cites the case of People v. Belton, 23 Cal.3d 516, 519-27, 153 Cal.Rptr. 195, 591 P.2d 485 (1979), in which the California Supreme Court held that section 1111, which provides that a conviction cannot be based solely on uncorroborated accomplice testimony, applies to uncorroborated out-of-court accomplice statements admitted under California Evidence Code (“Evidence Code”) section 1235 (which codifies the hearsay exception for prior inconsistent statements), even though these statements are not within the traditional definition of “testimony” in that they are not given under oath. Subsequent California Supreme Court opinions have emphasized, however, that Belton did not hold that all out-of-court statements should be interpreted as “testimony” necessitating the application of section llll’s corroboration requirement, but rather that:

‘testimony’ within the meaning of section 1111 includes all oral statements made by an accomplice or coconspirator under oath in a court proceeding and all out-of-court statements of accomplices and co-conspirators used as substantive evidence of guilt which are made under suspect circumstances .... On the other hand, when the out-of-court statements are not given under suspect circumstances, those statements do not qualify as ‘testimony’ and hence need not be corroborated under section 1111.

People v. Williams, 16 Cal.4th 153, 245, 66 Cal.Rptr.2d 123, 940 P.2d 710 (1997) (citations omitted) (emphasis added).

In the instant case, co-defendant Miller’s statements were not made under suspect circumstances. She was not being questioned by the police or by any other person arguably connected with law enforcement who might have been able to secure more lenient treatment for her. Moreover, the incentive for blame-shifting, at least in its traditional form, was largely absent from this case — because evidence establishing Miller’s prior false representations was detrimental to both Miller and petitioner’s prospects at trial. Given these circumstances, Miller’s statements to Brayevich did not qualify as “testimony” under section 1111, and therefore did not need to be corroborated in order to be admissible.

Petitioner next argues that Miller’s recorded statement was inadmissible because “codefendant’s statements were made by co-defendant only after petitioner already was in custody, and thus they obviously were not part of any ongoing conspiracy so as to be admissible against petitioner under the coconspiratory exception to the hearsay rule contained in section 1220 of the California Evidence Code.” (Petition, December 18, 2001, (“Petition”), at 10-11, 11-16.) As respondent points out, however, Miller’s statements were not offered to show the truth of the matters asserted (i.e., that Miller was a virgin, had no children, and lived alone). Rather, they were introduced to corroborate Brayevich’s testimony that Miller had made false representations to him regarding her personal circumstances. As such, the statements did not constitute hearsay, and thus the applicability of an exception to the hearsay rule is irrelevant.

In sum, the statements made by co-defendant Miller to Brayevich during their conversation of September 22, 1995, were admissible against petitioner to corroborate Brayevich’s testimony that co-defendant had earlier made false representations. Moreover, the statements corroborated Brayevich’s testimony regarding the earlier false representations allegedly made to him by Miller. In any event, the state appellate court found that evidence of the Wyss, Dodd, and McAllister incidents was sufficient to meet section 532(b)’s corroboration requirement, and, as explained above, this court agrees.

In addition to examining petitioner’s corroboration argument, the court has also independently reviewed the voluminous record in this case to determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. There was ample evidence from which a rational juror could have found the elements of theft by false pretenses proven beyond a reasonable doubt.

Therefore, petitioner has failed to demonstrate that the state appellate court’s decision was contrary to clearly established United States Supreme Court precedent, or involved an unreasonable application of such precedent. 28 U.S.C. § 2254(d). Accordingly, petitioner is not entitled to habeas relief on this claim.

2. Instructions On Penal Code Section 5S2(b)’s Corroboration Requirement

Petitioner claims that the trial court’s instructions failed to adequately inform the jury of the nature and amount of evidence necessary to corroborate the existence of a false pretense for a conviction of theft by false pretenses pursuant to California Penal Code § 532(b). Respondent contends that this claim is proeedurally defaulted.

Federal habeas review of a claim is barred in all cases where a state prisoner has defaulted his federal claim in state court due to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To preclude federal review, a state court must have relied on a procedural bar as the basis for its disposition of the case. Harris v. Reed, 489 U.S. 255, 261-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

To determine whether petitioner’s claim was proeedurally barred, we look to the last reasoned state court opinion — in this case the opinion of the California state court of appeals. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Citing California’s rule that a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language, the court of appeal held that because the instruction was correct in law, and because the defendant had not requested amplifying or clarifying language, petitioner had waived this claim on appeal. Slip Op. at 15:3-7.

California’s rule that a party’s failure to request the amplification or clarification of a jury instruction at trial waives the right to object to the adequacy of the instruction on appeal is an “independent” state procedural rule in that it stems solely from California law. See, e.g., People v. Guiuan, 18 Cal.4th 558, 570, 76 Cal.Rptr.2d 239, 957 P.2d 928 (1998); People v. Byrnes, 30 Cal. 206, 208 (1866). A burden-shifting analysis is applied to resolve the issue of adequacy: “Once the state pleads the affirmative defense of an independent and adequate state procedural bar, the burden to place that defense in issue shifts to the petitioner. This must be done, at a minimum, by specific allegations by the petitioner as to the adequacy of the state procedure.” Bennett v. Mueller, 322 F.3d 573, 584 (9th Cir.2003). In the instant case, as stated above, respondent pled the affirmative defense of an independent and adequate state procedural bar, shifting the burden to place that defense at issue to petitioner. Petitioner, however, has not made any specific allegations as to the inadequacy of the state procedural rule. Therefore, he has not placed the adequacy of the state’s procedural bar at issue.

Because the procedural rule relied upon by the California appellate court is “independent” for purposes of procedural default, and because petitioner has not placed the rule’s “adequacy” at issue, the court concludes that this claim is procedurally defaulted. State court prisoners can under limited circumstances obtain federal habeas review of procedurally defaulted claims by demonstrating cause for the default and actual prejudice as a result of the alleged violation of federal law, or by showing that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546. A petitioner must establish factual innocence to show that a fundamental miscarriage of justice would result from application of a procedural default. See Gandarela v. Johnson, 286 F.3d 1080, 1085 (2002).

In his traverse, petitioner concedes that he cannot meet the cause and prejudice standard. Traverse at 10:14-21. He contends, however, that he meets the “fundamental miscarriage of justice” test because the failure to instruct, “resulted in the conviction of one who is actually innocent.” Traverse at 10:21-26. Petitioner, however, submits no evidence, and makes no argument supporting this position outside of the conclusory assertion that he is actually innocent. For the reasons discussed above, that sufficient evidence existed in the trial record to support petitioner’s conviction of theft by false pretenses, and petitioner’s failure to offer any evidence contradicting the evidence admitted at trial, the court rejects his conclusory assertion of actual innocence.

Accordingly, petitioner is not entitled to habeas relief on this claim.

3. Sufficiency of Evidence Supporting Conviction For Credit Card Forgery

Petitioner next contends that the evidence adduced at trial was insufficient to support his conviction of credit card forgery with respect to the victim, Wilbur Johnson. Liberally constx-ued, the petition advances four separate arguments supporting this insufficiency of evidence claim. First, petitioner asserts that the offense of credit card forgery did not occur because, “the only individual [who] signed a name in relation to any type of credit card transaction was the elderly Wilbur Johnston himself.” Petition at. 19:11-14. Second, petitioner appears to suggest that no crime occurred in the absence of a net loss to victim Johnson. Third, petitioner claims that there was insufficient evidence at trial to establish that he was the person who used the fictitious name “Michael Marco.” Finally, petitioner argues that the prosecution failed to establish the “lack of authority” element of credit card forgery.

As explained above, a federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne, 982 F.2d at 338. The federal court “determines only whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” See id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781.

Under California law, the elements of credit card forgery are: “(1) a person signed the name of another or fictitious person to any [sales slip, sales draft, or instrument for the payment of money which evidences an access card transaction]; (2) the person had no authority to sign the name of the other person; (3) the person knew that he did not have the authority to sign the other’s name; and (4) the person signed the instrument with the specific intent to defraud another person.” CaLPenal Code § 484f(b); CALJIC No. 15.00.

Petitioner first argues that the offense of credit card forgery did not occur because “the only individual [who] signed a name in relation to any type of credit card transaction was the elderly Wilbur Johnston himself.” Petition at 19:11-14. Respondent disputes the contention that Wilbur Johnson was the only person to sign a document that falls within the scope of Penal Code § 484f(b). Answer at 20:7-13.

As summarized in the background section above, the evidence admitted at trial showed that a man accompanied Johnson when Johnson bought a cellular telephone on June 12, 1995. RT at 1099-1123. The same man returned the phone for a store credit which he applied to a more expensive digital cellular phone, signing the name “Michael Marco” to a receipt to receive the store credit and to a second receipt verifying that the returned telephone was the item originally purchased. RT at 1102-14. The man came back a third time to return the items and purchase a yet more expensive cellular telephone and telephone accessories, again signing the name Michael Marco and having the initial purchase credited to his new purchase. RT at 1102-14; People’s Trial Exhibit # 38, lodged July 28, 2003.

The appellate court found that the store credit receipts signed by “Michael Marco” allowing Johnson’s initial purchase amount of $221.53 to be applied toward Marco’s subsequent purchases constituted, “instrument[s] for the payment of money which evidences an access card transaction” for the purposes of California Penal Code § 484f(b). This determination of state law is binding on this court. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (state court’s interpretation of state law, including one announced on direct appeal of challenged conviction, binds a federal court sitting in habeas corpus). Petitioner has presented no authority, nor are we aware of any, to contradict the appellate court’s construction of section 484f(b) to include these types of store credit receipts. Therefore, petitioner is incorrect that there was no evidence that anyone other than Johnson signed a credit card instrument within the meaning of California Penal Code § 484f(b).

Petitioner’s second argument is that, when the name Michael Marco was signed, “it only pertained to a transaction where there was a return of property from a prior occasion with the acquisition -of replacement items where the difference was paid for in cash.” Petition at 19:18— 21. That there may have been no net loss to Johnson, inasmuch as the person using the name Michael Marco paid in cash the difference between the first apparently authorized cellular telephone purchase and the subsequent, more expensive cellular telephones and accessories, does not mean no crime occurred. The salient element of section 484f(b) is the signing of the name of another person or a fictitious person in connection with a credit card transaction. 2 Witkin, Cal. Crim. Law 3d (2000) § 192 at 219. “The existence of a specific intent to defraud is an essential element of the crime of forgery, but it is not necessary to complete the crime that any person be actually defrauded or suffer a loss by reason of the forgery.” CALJIC 15.03 (emphasis added). Accordingly, petitioner’s argument that he could not be convicted in the absence of a net loss to Johnson fails.

Third, petitioner contends that there is insufficient evidence to support a finding that he “in fact was the individual who used the name Michael Marco in connection with the cash transactions that occurred on June 28, 1995, and August 16, 1995.” Petition at 20:4-7. The California appellate court rejected this contention as follows:

The following evidence established that Harris was Michael Marco: a receipt signed by “Mr. Marco” was found in the kitchen cupboard of Harris’s residence at 537 Sunnyvale Avenue. There were cellular telephone charges on Johnston’s credit card accounts which corresponded to telephone numbers frequently called by defendants including Miller’s parents and Brayevich. Furthermore Harris used the name Michael Marco or Michael Marcos to rent the house on Sunnyvale Avenue and he introduced Miller as Gina Marco, his wife. He signed the lease Michael Marco. He also identified himself by that name when he purchased [a] 1977 Mercedes.

Slip Op. at 19-20. The above evidence described by the state appellate court constitutes sufficient evidence from which a rational fact-finder could find beyond a reasonable doubt that petitioner was the person who signed the fictitious name “Michael Marco” to the store credit receipts.

Finally, petitioner argues that the prosecution failed to establish the “lack of authority” element of credit card forgery because it did not prove that Johnson did not give “Michael Marco” authority to sign store credit receipts allowing Johnson’s initial purchase amount to be applied towards Marco’s subsequent purchase. The prosecution need not prove the lack of authority to sign & fictitious name, however. As explained in California state court opinions analyzing California’s general forgery statute, Penal Code section 470:

Such an argument is pure sophistry. The requirement that there be proof of lack of authority applies where the name of an actual person is signed, not to the situation where a fictitious name is signed. ‘The proof of lack of authority to sign the name of an actual person is necessary to prove the falsity of the instrument’; if the person whose name is signed to the instrument is fictitious, proof of this fact is likewise proof of the falsity of the instrument. Thus, ‘while one may sign a fictitious name which he has adopted for innocent purposes without being guilty of forgery, ... if ... fraud is shown, the fact that the name had been previously assumed, by the one signing it [for any purpose] ... will not prevent the signature being a forgery ----’

Wutzke v. Bill Reid Painting Service, 151 Cal.App.3d 36, 41, 198 Cal.Rptr. 418 (1984) (emphasis in original) (citations omitted); see also People v. Porter, 136 Cal.App.2d 461, 467, 288 P.2d 561 (1955). In the instant case, ample circumstantial evidence showed that “Michael Marco” was a fictitious person created by petitioner for use as one of his aliases. Because “Michael Marco” was a fictitious name, it was not incumbent upon the prosecution to prove his ‘lack of authority’ to sign this name.

In addition to rejecting the four specific arguments advanced by petitioner in support of his claim that insufficient evidence supported his conviction for credit card forgery, the court has independently reviewed those portions of the record relating to this conviction. Based on such review, the court finds that a rational trier of fact could have found proof of guilt beyond a reasonable doubt. Therefore, petitioner has failed to establish that the state appellate court’s decision was contrary to clearly established United States Supreme Court precedent, or involved an unreasonable application of such precedent.

Petitioner is not entitled to habeas relief on this claim.

4. Sufficiency of Evidence Supporting Grand Theft Conviction (Wilbur Johnson)

Petitioner next claims that there was insufficient evidence to support his conviction for grand theft from Wilbur Johnson. The state appellate court rejected this claim, finding that sufficient circumstantial evidence existed to support this conviction.

As explained above, a federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne, 982 F.2d at 338. The federal court “determines only whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” See id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781; Payne, 982 F.2d at 338; Miller, 757 F.2d at 992-93; Bashor, 730 F.2d at 1239. Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a conviction. Walters, 45 F.3d at 1358. Mere suspicion and speculation, however, cannot support logical inferences. Id.

Under California law, the crime of grand theft can be prosecuted on multiple theories, including larceny, embezzlement, larceny by trick or device, and theft by false pretenses. CALJIC 14.00; CaLPenal Code § 484. Petitioner contends that the jury was instructed only on a theory of theft by larceny, and not on the theories of theft by trick or device or theft by false pretenses. He apparently claims that, because the jury was not instructed on a theory of theft by false pretenses, his conviction cannot be upheld on this theory. Petitioner also argues that the record contains insufficient evidence to support his conviction under any of the theories that fall within the scope of California’s grand theft statute. The appellate court rejected these arguments as follows:

In California, the ancient common law distinctions between the theories of larceny by trick and theft by false pretenses no longer exist by statute; under section 484, there is simply one consolidated crime of theft, which the jury may find upon either theory, if there is an ‘unlawful taking’. (§ 952). As stated by our Supreme Court in People v. Ashley, (1954) 42 Cal.2d 246, 258, 267 P.2d 271, ‘The purpose of the consolidation was to remove the technicalities that existed in the pleading and proof of these crimes at common law ... ’ Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an ‘unlawful taking’ has been proved. We note that another recent larceny case ... supports our analysis: ‘In the instant action it was irrelevant whether defendant obtained the dress by trick or intimidation of the store employees. The end result was that he left the store with property he had not paid for.’ People v. Counts, (1995) 31 Cal.App.4th 785, 793, 37 Cal.Rptr.2d 425.

In our case there is substantial, albeit circumstantial, evidence to establish [petitioner’s] intent to commit theft from Johnston as established by his involvement in the conspiracy with Gina Miller to defraud Brayevich and others. (Evid. Code § 1101, subd. (b).) “Both direct and circumstantial evidence are acceptable as means of proof. Neither is entitled to any greater weight than the other.” (CALJIC No. 2.00). There is no reasonable explanation for how [petitioner] came to acquire thousands of dollars of rope charged to Johnston’s account, absent fraud. (Cf People v. Silberman (1989) 212 Cal.App.3d 1099, 1116-1117, 261 Cal.Rptr. 45). Johnston was living in retirement on a fixed income and was necessarily frugal. There is no evidence that Johnston owed a debt to petitioner; petitioner was not a relative or known to be a friend (whether as “Marco,” “Harris,” or any other name) who would be the normal object of Johnston’s bounty. The only reasonable explanation for Johnston’s unusual expenditures was that he was another victim of Harris’s and Miller’s common scheme or plan to defraud vulnerable old men. Substantial evidence supports the conviction.

People v. Miller, No. H017020, Slip Op. (Cal.Ct.App. June 7, 2000), as modified by People v. Miller, No. H017020, Slip Op. at 3-4 (Cal.Ct.App. July 6, 2000).

First, petitioner’s argument that the jury was not instructed on a theory of theft by false pretenses is contradicted by the record. Although the trial judge’s oral instructions regarding this count focused primarily on the theory of theft by larceny the trial judge’s instruction that, “[t]he crime of theft may consist of theft by larceny or theft by false pretenses” permitted the jury to also consider the theory of theft by false pretenses. RT at. 2550:22-23. Accordingly, petitioner’s conviction for grand theft could have rested upon theories of either larceny or false pretenses.

Juries need not specify the theory under which they return a conviction of grand theft, but at least one such theory must be supported by the record:

When the formerly distinct offenses of larceny, embezzlement, and obtaining property by false pretenses were consolidated in 1927 into the single crime of ‘theft’ defined by Penal Code section 484, most of the procedural distinctions between those offenses were abolished. But their substantive elements were not: ‘The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.’

People v. Davis, 19 Cal.4th 301, 304-05, 79 Cal.Rptr.2d 295, 965 P.2d 1165 (1998) (citing People v. Ashley, 42 Cal.2d 246, 258, 267 P.2d 271