nina marino (state bar no. 142815) kaplan marino, pc

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Nina Marino (State Bar No. 142815)KAPLAN MARINO, PC9454 Wilshire Boulevard, Suite 500Beverly Hills, California 90212Telephone: (310) 557-0007Facsimile: (310) 275-4651E-mail: [email protected]

Attorneys for Defendant Tatyana Berkovich

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

PEOPLE OF THE STATE OF CALIFORNIA, ) )

Plaintiff, ) )

v. ) )

EUGENE SELIVANOV AND TATYANA )BERKOVICH, )

)Defendants. )

______________________________________ )

CASE NO. BA372244NOTICE OF MOTION AND MOTIONFOR A NEW TRIAL;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

Date: October 4, 2013Time: 8:30 a.m.Department: 102

TO DISTRICT ATTORNEY JACKIE LACEY AND DEPUTY DISTRICT ATTORNEYS

SANDI ROTH AND DANA ARATANI:

PLEASE TAKE NOTICE that on October 4, 2013, at 8:30 a.m., or as soon thereafter as the

matter may be heard, in the Courtroom of the Honorable Stephen A. Marcus, Department 102,

defendant Tatyana Berkovich, by and through her counsel of record, will, and hereby does, move this

Court for a new trial on counts 1, 2, 15, 16, 17, 18, 19 and 25.

This motion is based on the statutory grounds enumerated in California Penal Code sections

1181 and 1182 and on Ms. Berkovich’s constitutional guarantee of a fair trial. This motion is

supported by this Notice, the attached Memorandum of Points and Authorities, the complete files

and records of this action, including the motion for new trial filed by codefendant Eugene Selivanov;

NOTICE OF MOTION AND MOTION FOR A NEW TRIAL

mailto:[email protected]

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

and by such other matters and arguments as may come before the Court.

Defendant Berkovich specifically joins in the issues raised in her codefendant’s briefs to the

extent that they may benefit her. (See generally People v. Castillo (1991) 233 Cal.App.3d 36, 51;

People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5; People v. Smith (1970) 4 Cal.App.3d 41, 44.)

DATED: September 4, 2013 Respectfully submitted,

KAPLAN MARINO, PC

________________________________NINA MARINO Attorney for TATYANA BERKOVICH

/ /


ii

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

MEMORANDUM OF POINTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. THIS COURT MUST GRANT A NEW TRIAL ON COUNT 2 FOREMBEZZLEMENT BECAUSE THE TRIAL COURT FAILED TOGIVE A JUROR UNANIMITY INSTRUCTION SUCH AS CALJIC17.01 OR CALCRIM 3500, THUS, DEPRIVING MS. BERKOVICHOF HER CONSTITUTIONAL RIGHTS TO DUE PROCESS ANDA UNANIMOUS JURY VERDICT UNDER THE FIFTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATESCONSTITUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Introduction And Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. A Trial Court Must Give A Unanimity Instruction SuaSponte When A Defendant's Conviction May BeBased On More Than One Act And The ProsecutionFails To Elect Which Course Of Conduct ConstitutesThe Charged Offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. A NEW TRIAL ON COUNTS 1, 2 AND 25 IS REQUIREDBECAUSE IT WAS PREJUDICIAL ERROR TO NOT ALLOWHIGHLY RELEVANT EVIDENCE OF MS. BERKOVICH’SEFFORTS TOWARDS THE SUCCESS OF IVY ACADEMIA ANDINSTANCES OF MS. BERKOVICH’S DEDICATION ANDCOMMITMENT TO IVY ACADEMIA IN AT TRIAL TO REBUTTHE INFERENCE THE PROSECUTION CREATED THAT MS.BERKOVICH’S INTENT WAS CRIMINAL, RESULTING IN ADENIAL OF THE CONSTITUTIONAL RIGHTS TO CONFRONTAND CROSS-EXAMINE ADVERSE WITNESSES AND TOPRESENT A COMPLETE DEFENSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Introduction And Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. The Error In Not Allowing Ms. Berkovich To OfferSpecific Instances Of Her Commitment To TheSchool Violated Her Right To Confront TheWitnesses Against Her. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. The Court’s Failure To Allow The Defense EvidenceOf Ms. Berkovich’s Dedication And Commitment ToIvy Academia Amounted To The Denial Of ADefense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

D. Ms. Berkovich Was Prejudiced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


iii

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

III. THE COURT PREJUDICIALLY ERRED IN FAILING TOPROPERLY INSTRUCT THE JURY ON EACH ELEMENT OFTHE OFFENSE OF MISDEMEANOR FALSE TAX RETURNVIOLATIONS IN COUNTS 15, 16, 17, 18 AND 19. . . . . . . . . . . . . . . . . . . . . . 21

A. Introduction And Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . 21

B. The Court Erred In Failing To Properly Instruct TheJury On All Elements Of The Charged Offenses InCounts 15 Through 19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

C. The Error Was Not Invited Or Forfeited. . . . . . . . . . . . . . . . . . . . . . . . . . 23

D. The Failure To Instruct On Two Elements Of TheOffense In Counts 15, 16, 17, 18 And 19 WasPrejudicial And Reversal Is Required. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

IV. MS. BERKOVICH JOINS IN ALL ISSUES RAISED BY HERCODEFENDANT THAT MAY ACCRUE TO HER BENEFIT. . . . . . . . . . . . . 27

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

EXHIBIT A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ATTACHMENT

EXHIBIT B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ATTACHMENT

PROOF OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . END


iv

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF AUTHORITIES

PAGESUPREME COURT CASES:

Arizona v. Fulminante (1991) 499 U.S. 279. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Berger v. California (1969) 393 U.S. 314. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Brecht v. Abrahamson (1993) 507 U.S. 619. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

California v. Green (1970) 399 U.S. 149. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

California v. Roy (1996) 519 U.S. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Carella v. California (1989) 491 U.S. 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Chambers v. Mississippi (1973) 410 U.S. 284.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Chapman v. California (1967) 386 U.S. 18.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 20, 26

Crane v. Kentucky (1986) 476 U.S. 683. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Davis v. Alaska (1974) 415 U.S. 308.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Estelle v. McGuire (1991) 502 U.S. 62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gideon v. Wainwright (1963) 372 U.S. 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

In re Winship (1970) 397 U.S. 358. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Johnson v. United States (1997) 520 U.S. 461 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Maryland v. Craig (1990) 497 U.S. 836. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Mattox v. United States (1895) 156 U.S. 237. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

McKaskle v. Wiggins (1984) 465 U.S. 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Neder v. United States (1999) 527 U.S. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Pointer v. Texas (1965) 380 U.S. 400. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 17

Pope v. Illinois (1987) 481 U.S. 497. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Rose v. Clark (1986) 478 U.S. 570. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Sandstrom v. Montana (1979) 442 U.S. 510. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Sullivan v. Louisiana (1993) 508 U.S. 275 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Taylor v. Illinois (1988) 484 U.S. 400. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Tumey v. Ohio (1927) 273 U.S. 510. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25


v

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States v. Cronic (1984) 466 U.S. 648. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Gaudin (1995) 515 U.S. 506. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Vasquez v. Hillery (1986) 474 U.S. 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Waller v. Georgia (1984) 467 U.S. 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Yates v. Evatt (1991) 500 U.S. 391. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CALIFORNIA CASES:

In re Martin (1987) 44 Cal.3d 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

In re Montgomery (1970) 2 Cal.3d 863. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

In re Terry (1971) 4 Cal.3d 911.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Avalos (1984) 37 Cal.3d 216. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

People v. Brown (1996) 42 Cal.App.4th 1493.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

People v. Butler (2000) 85 Cal.App.4th 745. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

People v. Carpenter (1997) 15 Cal.4th 312.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Carrera (1989) 49 Cal.3d 291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

People v. Castillo (1991) 233 Cal.App.3d 36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, 27

People v. Collins (1976) 17 Cal.3d 687.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

People v. Cooks (1983) 141 Cal.App.3d 224.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Cummings (1993) 4 Cal.4th 1233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

People v. Davis (1992) 8 Cal.App.4th 28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

People v. Deletto (1983) 147 Cal.App.3d 458.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6

People v. Diedrich (1982) 31 Cal.3d 263. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

People v. Dyer (1988) 45 Cal.3d 26.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

People v. Ellis (1999) 69 Cal.App.4th 1334. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

People v. Flood (1998) 18 Cal.4th 470. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

People v. Freeman (1994) 8 Cal.4th 450. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Green (1971) 3 Cal.3d 981.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Harris (1998) 60 Cal.App.4th 727.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


vi

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

People v. Hernandez (2013) 217 Cal.App.4th 559. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 6, 8

People v. Herring (1994) 20 Cal.App.4th 1066.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Jones (1997) 58 Cal.App.4th 693. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

People v. Jones (1998) 17 Cal.4th 279. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

People v. Laport (1987) 189 Cal.App.3d 281. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

People v. Matute (2002) 103 Cal.App.4th 1437. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Melendez (1990) 224 Cal.App.3d 1420. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Melhado (1998) 60 Cal.App.4th 1529. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-5

People v. Moon (2005) 37 Cal.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

People v. Reynolds (1984) 152 Cal.App.3d 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

People v. Riel (2000) 22 Cal.4th 1153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5

People v. Robbins (1989) 209 Cal.App.3d 261. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

People v. Rodrigues (1994) 8 Cal.4th 1060.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

People v. Russo (2001) 25 Cal.4th 1124. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

People v. Serrato (1973) 9 Cal.3d 753. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Shaw (2002) 97 Cal.App.4th 833.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Smith (1970) 4 Cal.App.3d 41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, 27

People v. Smith (2005) 132 Cal.App.4th 1537. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Stone (1981) 117 Cal.App.3d 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, 27

People v. Stritzinger (1983) 34 Cal.3d 505. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Sutherland (1993) 17 Cal.App.4th 602. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

People v. Thompson (1995) 36 Cal.App.4th 843.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6

People v. Vargas (2001) 91 Cal.App.4th 506. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Waidla (2000) 22 Cal.4th 690. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Watson (1956) 46 Cal.2d 818.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 20

People v. Wilkins (2013) 56 Cal.4th 333. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

People v. Wolfe (2003) 114 Cal.App.4th 177. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


vii

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Richardson v. Superior Court (2008) 43 Cal.4th 1040. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONSTITUTIONS:

California Constitution, article I, section 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 15, 23

California Constitution, article I, section 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

California Constitution, article I, section 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

United States Constitution, Fifth Amendment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7, 22

United States Constitution, Fourteenth Amendment. . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 5, 7, 19, 22

United States Constitution, Sixth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-16, 22

STATUTES:

Evidence Code section 352. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Evidence Code section 780. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Penal Code section 1181. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Penal Code section 1182. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Revenue and Taxation Code section 19701.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-23, 26

CALJICS/CALCRIMS:

CALJIC No. 17.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4, 6

CALJIC No. 7.26.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CALJIC No. 7.61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CALCRIM 16.911. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CALCRIM 1801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CALCRIM 2810. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

CALCRIM 3500. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5

RULES OF COURT:

California Rules of Court, rule 8.200.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

OTHER AUTHORITY:

Legislative Counsel's Digest of Assembly Bill No. 139. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21


viii

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMORANDUM OF POINTS AND AUTHORITIES

I.

THIS COURT MUST GRANT A NEW TRIAL ON COUNT 2FOR EMBEZZLEMENT BECAUSE THE TRIAL COURTFAILED TO GIVE A JUROR UNANIMITY INSTRUCTIONSUCH AS CALJIC 17.01 OR CALCRIM 3500 , THUS,1

DEPRIVING MS. BERKOVICH OF HER CONSTITUTIONALRIGHTS TO DUE PROCESS AND A UNANIMOUS JURYVERDICT UNDER THE FIFTH AND FOURTEENTHAMENDMENTS TO THE UNITED STATES CONSTITUTION

A. Introduction And Background

In the instant case, the prosecution put forth evidence that Ms. Berkovich was guilty of

embezzlement in count 2 by committing over 200 separate acts. (See Exh. 17 (American Express

Charges).) The dates of the charges alleged to fall under count 2 ranged from January, 2005, all the

way through January, 2010. (Exh. 17; March 4, RT 1620; March 8, RT 3047.) Items that the

prosecutions’s forensic accountant “disallowed” were highlighted and submitted to the jury. (See

March 4, RT 3053.) These items varied widely in nature; the purchases took place over a period of

years; the only thing they had in common was that the charges were made using the American

Express card; and the prosecution witness concluded that they should be disallowed. (Exh. 17.)

During the jury instruction conference on this matter, the court stated that it was going to give

a unanimity instruction. The court stated it was not sure if it would list what counts the instruction

applied to, but recognized the instruction applied wherever the prosecution alleged more than one

act. The court stated:

Unanimity is going to be given. I don't know that I'm gonna actually list the countsit's going to apply to. Just give a general unanimity instruction and the jury is tounderstand that it applies whenever the people alleging more than one act. Andpossibly, which is something we're going to have to discuss, whether non penal lawapplies.

(March 25, RT 35.) Later during the same discussion, the court stated that the unanimity instruction

would be given “generally.” (March 25, RT 101.) However, for reasons that are not set forth on the

The court herein chose to generally use CALJIC instructions. While CALCRIM is the newer set1

of instructions, the two unanimity instructions are substantially similar.


1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

record, the court ultimately decided to give a unanimity instruction only as to counts 1, 3, 5, 6, 9, 12

and 25.) (Jury Instructions as given, p. 25.) No unanimity instruction was given as to count 2. Thus,

it is impossible to know whether the jury unanimously agreed that Ms. Berkovich was guilty beyond

reasonable doubt of any of the alleged acts of embezzlement.

Despite the evidence of separate acts spanning a period of many years involving different

conduct at different locations which might have constituted the offense charged in count 2, the jury

was not instructed that they must unanimously agree on a single act or acts before they could convict

Ms. Berkovich of the charged crime. This error deprived the defendant of her state and federal rights

to due process and a unanimous jury verdict. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I,

§§ 7, 15 & 16; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; People v. Thompson (1995)

36 Cal.App.4th 843, 850; CALCRIM 3500; CALJIC No. 17.01.)

Evidence of multiple distinct acts which could have qualified as the conduct alleged in count

2 were presented. This could have resulted in different jurors convicting Ms. Berkovich based on

different events at different locations, occurring years apart. This created the very real danger that

the jurors never unanimously agreed on any particular criminal act or acts having occurred to convict

Ms. Berkovich of count 2. This violated her right to a unanimous verdict.

When a defendant is charged with a single criminal offense, but the evidence shows more

than one act which could constitute that offense, either the prosecutor must select the specific act

relied on or the trial court must instruct the jurors that they must unanimously agree that the

defendant committed the same specific act. (People v. Brown (1996) 42 Cal.App.4th 1493, 1499;

People v. Thompson, supra, 36 Cal.App.4th at p. 850.) Where no election is made, the court must

give a unanimity instruction. (People v. Butler (2000) 85 Cal.App.4th 745, 755-756.)

In California, a jury verdict in a criminal case must be unanimous. (People v. Collins(1976) 17 Cal.3d 687, 693 [131 Cal.Rptr. 782, 552 P.2d 742], citing Cal. Const., art.I, § 16.) Thus, our Constitution requires that each individual juror be convinced,beyond a reasonable doubt, that the defendant committed the specific offense he ischarged with. (People v. Russo (2001) 25 Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436,25 P.3d 641] (Russo).) Therefore, when the evidence suggests more than onediscrete crime, either: (1) the prosecution must elect among the crimes; or (2) the trialcourt must instruct the jury that it must unanimously agree that the defendantcommitted the same criminal act. (Ibid.; People v. Brown (1996) 42 Cal.App.4th1493, 1499–500 [50 Cal.Rptr.2d 407].) The unanimity instruction must be given sua


2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

sponte, even in the absence of a defense request to give the instruction. (People v.Riel (2000) 22 Cal.4th 1153, 1199 [96 Cal.Rptr.2d 1, 998 P.2d 969]; People v.Carrera (1989) 49 Cal.3d 291, 311, fn. 8 [261 Cal.Rptr. 348, 777 P.2d 121].)

(People v. Hernandez (2013) 217 Cal.App.4th 559, 569 (Hernandez).)

A unanimity instruction “focuses the jury's attention on a specific act and requires the jury

to determine guilt as to that act beyond a reasonable doubt.' [Citation.]" (People v. Robbins (1989)

209 Cal.App.3d 261, 264-265.) Even absent a request, the court should give the unanimity

instruction sua sponte "where the circumstances of the case so dictate." (People v. Carrera (1989)

49 Cal.3d 291, 311, fn. 8.)

Given the acquittals on so many other counts, and Ms. Berkovich being found guilty of only

misdemeanor lesser offenses as to others, it is clear that this jury did not credit the entire prosecution

case, believe the facts set forth by the prosecution in total, or believe Ms. Berkovich was as culpable

as alleged. Not givivng a unanimity instruction as to count 2 under these circumstances constituted

prejudicial error requiring a new trial be granted.

B. A Trial Court Must Give A Unanimity Instruction Sua SponteWhen A Defendant's Conviction May Be Based On More ThanOne Act And The Prosecution Fails To Elect Which Course OfConduct Constitutes The Charged Offense

Given the likelihood that the jury found Ms. Berkovich guilty without unanimously agreeing

on a single act or acts that constituted the illegal conduct, the trial court had a duty to instruct the jury

sua sponte with CALJIC No. 17.01 or CALCRIM 3500. In failing to so instruct, the court

committed prejudicial and reversible error.

When the information charges the defendant with a single criminal act, and the evidence

shows more than one such unlawful act may have been committed, the court must instruct the jury

that it must unanimously agree that the defendant committed the same act. (People v. Melhado,

supra, 60 Cal.App.4th at p. 1534; People v. Thompson, supra, 36 Cal.App.4th at p. 850.)

Referring to the former CALJIC standard unanimity instruction, our Supreme Court held that

CALJIC No. 17.01 is

an appropriate instruction when conviction on a single count could be based on twoor more discrete criminal events. In such cases it is appropriate the jurors all agreethe defendant is responsible for the same discrete criminal event.


3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(People v. Davis (1992) 8 Cal.App.4th 28, 45.)

CALJIC No. 17.01 focuses the jury's attention on a specific act and requires the jury to

determine guilt as to that act beyond a reasonable doubt. (People v. Deletto (1983) 147 Cal.App.3d

458, 472; People v. Robbins, supra, 209 Cal.App.3d at pp. 264-265.) A trial court must give a

unanimity instruction sua sponte where it is applicable. (People v. Melhado, supra, 60 Cal.App.4th

at p. 1534.)

This requirement of unanimity as to the criminal act ‘is intended to eliminate thedanger that the defendant will be convicted even though there is no single offensewhich all the jurors agree the defendant committed.'

(People v. Russo (2001) 25 Cal.4th 1124, 1132, citing People v. Sutherland (1993) 17 Cal.App.4th

602, 612.)

The Russo court cited with approval its decision in People v. Diedrich (1982) 31 Cal.3d 263,

281, finding that in cases such as Ms. Berkovich’s, where a jury could find different criminal acts

occurred, a unanimity instruction must be given because

it would be unacceptable if some jurors believed the defendant guilty of one crimeand other jurors believed her guilty of another . . . . Thus, the unanimity instructionis appropriate ‘when conviction on a single count could be based on two or morediscrete criminal events’ . . . .

(People v. Russo, supra, 25 Cal.4th at pp. 1134-1135.) Thus, in cases like the one at bar, the trial

court is obligated to give CALJIC No. 17.01, CALCRIM 3500 or their equivalent sua sponte.

(People v. Riel (2000) 22 Cal.4th 1153, 1199.)

The prosecution charged Ms. Berkovich with a single count of embezzlement in count 2.

Nevertheless, the jury was presented with evidence of more than 200 separate instances that might

have constituted the offense, and the prosecution never elected among them. Because the jury was

not instructed that it needed to unanimously agree regarding the act or acts which constituted count

2, it is entirely possible that some jurors convicted Ms. Berkovich based on completely different acts

from other jurors, and that, had they been given a unanimity instruction, they might never have

reached a unanimous result.

Depending on what evidence the jurors chose to believe, and depending on what sort of

expenses individual jurors found justified or not, Ms. Berkovich could have been convicted based


4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

on different acts occurring at different times. Such a conviction is clearly not a unanimous verdict

and cannot stand. Unanimity was a necessary instruction. (People v. Riel, supra, 22 Cal.4th at p.

1199, 1199; People v. Melendez (1990) 224 Cal.App.3d 1420, 1428; People v. Melhado, supra, 60

Cal.App.4th at p. 1534.)

C. Prejudice

Should this court not grant Ms. Berkovich a new trial, it is respectfully submitted that her

conviction in count 2 will not withstand appellate review. Upon appellate review, this court’s

actions with respect to jury instructions will be reviewed de novo, without deference to this court’s

legal conclusion that a unanimity instruction was not required.2

"[A]ssertions of instructional error are reviewed de novo." (People v. Shaw (2002) 97

Cal.App.4th 833.) Whether or not a 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.) As such, it should be examined without

deference. (Ibid.)

There is a split of opinion in the appellate courts as to whether the Chapman standardor Watson standard for harmless error applies in a unanimity instruction case. (See,e.g., People v. Matute (2002) 103 Cal.App.4th 1437, 1448 [127 Cal.Rptr.2d 472][noting conflicting authorities].) The majority of the courts that have addressed theissue have applied Chapman. (See, e.g., Wolfe, supra, 114 Cal.App.4th at pp.186–188; People v. Smith (2005) 132 Cal.App.4th 1537, 1545 [34 Cal.Rptr.3d 472];People v. Deletto (1983) 147 Cal.App.3d 458, 472 [195 Cal.Rptr. 233]; but seePeople v. Vargas (2001) 91 Cal.App.4th 506, 562 [110 Cal.Rptr.2d 210] [Watsonstandard applies].)

(Hernandez, supra, 217 Cal.App.4th at p. 576.)

The importance of the unanimity instruction is rooted in the Fourteenth Amendmentto the United States Constitution's requirement that all criminal defendants areafforded due process of law. The failure to give a unanimity instruction ‘has theeffect of lowering the prosecution's burden of proof.’ (People v. Wolfe (2003) 114Cal.App.4th 177, 186 [7 Cal.Rptr. 3d 483] [Fourth Dist., Div. Two] (Wolfe).)Accordingly, a failure to give the instruction when it is warranted abridges thedefendant's right to due process, as it runs the risk of a conviction when there is notproof beyond a reasonable doubt.

Of course, this court can and should conclude that the failure to give the instruction was due to2

inadvertence, but not cast blame for the error on Ms. Berkovich. The error was not requested orinvited in any manner.


5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(Hernandez, supra, 217 Cal.App.4th at p. 570)

Hernandez determined that the failure to give a unanimity instruction is governed by the

harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [ 87 S.Ct. 824, 17 L.Ed.2d

705, 710-711], which requires the error to be harmless beyond a reasonable doubt because the error

violates federal constitutional law. (Hernandez, supra, 217 Cal.App.4th at pp. 576-577.) This court

should follow Hernandez and find that its failure to instruct on unanimity was not harmless beyond

a reasonable doubt, and grant Ms. Berkovich a new trial on count 2.

Under the circumstances of this case, it cannot be said that the error was harmless beyond

a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) In order to apply Chapman

to an error such as this which lessened the burden of proof, the reviewing court must be able to

conclude beyond a reasonable doubt that there is no rational basis for the jury to have concluded that

the defendant committed some acts and not others. (See People v. Thompson, supra, 36 Cal.App.4th

at p. 853; People v. Deletto, supra, 147 Cal.App.3d at p. 471.) This is not possible here.

People v. Laport (1987) 189 Cal.App.3d 281 demonstrates the validity of this conclusion.

There, the defendant was charged with one count of grand theft. The evidence showed that

defendant had: (1) written $18,000 worth of checks to herself; and (2) taken $5000 worth of

paintings. Regarding the checks, defendant claimed that she was authorized to take the money.

With respect to the paintings, the defendant disclaimed any intent to keep them. On this record,

prejudicial error was found.

Failure to give CALJIC 17.01 here creates a conundrum. Jurors one through six, forexample, may have found appellant Laport guilty of theft for writing checks toherself, but jurors seven through twelve may have found her not guilty of thisoffense. On the other hand, jurors one through six may have found Laport not guiltyof the offense of stealing the paintings, but jurors seven through twelve may havefound her guilty of that offense. Twelve jurors would have found her guilty of thegeneral crime of theft but they would not have agreed upon which act constituted thattheft. Therefore, the judgment must be reversed.

(Id. at pp. 283-284.)

The identical result is appropriate here. Some jurors might have believed that certain of Ms.

Berkovich’s purchases were not authorized and rose to a level of criminal conduct. For example,


6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

some jurors might have believed that a seminar Ms. Berkovich bought called “Tax Secrets,” was not

business-related, while others might have believed the seminar was something someone running a

an entrepreneurial charter school would buy for the curriculum. (See Testimony of Steven

Thompson, March 20, RT 5242.) Other jurors might have believed the prosecution’s argument that

a boy’s swimsuit and/or a razor were personal items. These items and purchases had little in

common and took place on different days in different places. Different sets of jurors could have

arrived at their conclusions for entirely different and disparate reasons. Different jurors could have

not been convinced beyond a reasonable doubt that there was criminal intent on Ms. Berkovich’s part

for the same expenses other jurors believed were criminal. These same jurors could have been

convinced that other purchases were made with criminal intent. Given the number of various acts

and possibilities, and the absence of a jury instruction on unanimity, it is impossible to determine

if the jury ever unanimously agreed on any particular purchase as being criminal. Because of how

the case was presented, and the way the jury was instructed, we will never know what the jurors

decided with respect to count 2; we only know it is more than reasonably probable they never

reached a unanimous verdict as required under the state and federal constitutions. If only a single

juror voted for guilt based on different acts than the other jurors, then Ms. Berkovich’s constitutional

right to a unanimous verdict was violated.

Absent a unanimity instruction, there are numerous distinct plausible scenarios under which

the 12 jurors could have reached a non-unanimous verdict based on totally different acts occurring

at different places at different times with respect to count 2.

It is impossible to determine in this case whether some jurors believed Ms. Berkovich

committed acts different from the acts found true by other jurors. Likewise, it is impossible to tell

if she was convicted by a diluted standard less than that of proof beyond a reasonable doubt in

violation of her constitutional rights to due process and a unanimous jury verdict. (U.S. Const., 5th

& 14th Amends.; Cal. Const., art. I, §§ 7, 15 & 16; In re Winship (1970) 397 U.S. 358 [90 S.Ct.

1068, 25 L.Ed.2d 368]; People v. Serrato (1973) 9 Cal.3d 753, 766-767.)


7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Because it is impossible to conclude beyond a reasonable doubt that each juror agreed on the

particular criminal act or acts that formed the basis of the verdict, the error was not harmless. For

that reason, a new trail is required. (Hernandez, supra, 217 Cal.App.4th at p. 578; People v. Laport,

supra, 189 Cal.App.3d at pp. 283-284.)

Even if the Watson standard applies, the error was not harmless. (People v. Watson (1956)

46 Cal.2d 818, 836.) Under Watson, a “‘miscarriage of justice’ should be declared only when the

court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is

reasonably probable that a result more favorable to the appealing party would have been reached in

the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) A “We have made clear that a

‘probability’ in this context does not mean more likely than not, but merely a reasonable chance,

more than an abstract possibility.” [Citation.]’” (Richardson v. Superior Court (2008) 43 Cal.4th

1040, 1050, emphasis in original; People v. Wilkins (2013) 56 Cal.4th 333, 351.) Viewing the record

herein in its entirety, there is a reasonable chance and more than an abstract possibility that a result

more favorable to Ms. Berkovich would have been reached had a unanimity instruction been

properly given. As such, the error was not harmless under any standard of prejudice.


8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

II.

A NEW TRIAL ON COUNTS 1, 2 AND 25 IS REQUIREDBECAUSE IT WAS PREJUDICIAL ERROR TO NOT ALLOWHIGHLY RELEVANT EVIDENCE OF MS. BERKOVICH’SEFFORTS TOWARDS THE SUCCESS OF IVY ACADEMIAAND INSTANCES OF MS. BERKOVICH’S DEDICATIONAND COMMITMENT TO IVY ACADEMIA IN AT TRIAL TOREBUT THE INFERENCE THE PROSECUTION CREATEDTHAT MS. BERKOVICH’S INTENT WAS CRIMINAL,RESULTING IN A DENIAL OF THE CONSTITUTIONALRIGHTS TO CONFRONT AND CROSS-EXAMINE ADVERSEWITNESSES AND TO PRESENT A COMPLETE DEFENSE

A. Introduction And Procedural Background

The prosecution moved in limine to exclude evidence of Ivy’s academic performance and

success. Ms. Berkovich filed a written opposition, and this court granted the prosecution’s motion,

disallowing attempts to show that the school was successful. In so doing, the court went even

further, ruling that evidence of Ms. Berkovich’s work ethic was not relevant, and that specific

instances of her dedication to the school would not be admissible. (See, e.g., March 19, RT 5108.)

This had the effect of crippling the defense because Ms. Berkovich’s defense to the charges that she

purposefully and criminally made personal purchases on the American Express credit card would

have been undermined by evidence of her work ethic which would have shown that she worked

around-the-clock in tireless efforts towards making the school successful. The jury would have been

far more likely to conclude Ms. Berkovich made innocent and honest mistakes by making personal

purchases with the wrong credit card or co-signing school checks hastily and negligently if it had

learned how deeply concerned she was with ensuring the school’s success.

This was not a defense without evidentiary support. As the defense expert CPA testified,

there were numerous instances where Ms. Berkovich went to a store and made separate purchases

on a personal card and then other purchases on the American Express card. (See, e.g., March 21, RT

5452-5455; Exh. 381.) Likewise, Ms. Berkovich charged some meals to her personal card, and

others to the business, often at the very same restaurant on different days. (March 21, RT 5458-

5461; Exh. 382.) The fact that she so often segregated expenses by using separate credit cards

tended to support the notion that Ms. Berkovich, in charging some personal items to the American


9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Express card, may have simply acted in haste and made a mistake. This defense would have been

far more powerful if the jury understood the full scope of Ms. Berkovich’s dedication to the school

and its success.

For example, when, outside the jury’s presence, the defense sought to introduce a flyer a

witness had worked on called “Building A Better Ivy,” the court ruled its contents could not be put

before the jury

because I really think the flyer is designed to, once again, project what a wonderfulschool Ivy Academia [sic] is. And I am sure it was a wonderful school, but thatreally is not the issue for this jury. And it's more designed as a sympathetic appealto whatever. It is just not relevant.

(March 19, RT 4860.) This was consistent with the court’s rulings throughout the trial; anything that

showed the success of the school or Ms. Berkovich’s work ethic in any manner that might have

caused “warm feelings” towards the defendants was not going to be considered by the jury. The

problem with this approach was that it contributed to a false impression that played right into the

prosecution’s hand – that Ms. Berkovich was stealing, when, had this evidence been introduced, it

would have raised reasonable doubt as to whether she simply made honest mistakes.

Another example the court excluded was when, during a discussion on the prosecution’s

attempts to limit the testimony of defense witness Kimberly Hasserjian, the court again ruled that

any proffered testimony regarding Ms. Berkovich’s work ethics and/or dedication to the school was

irrelevant, and that the defense could not inquire as to those areas before the jury. (March 19, RT

5105-5106.) The court made the same ruling with respect to defense witness Michael Young.

(March 19, RT 5111. )

Similarly, the court ruled that the defense could not present testimony of defense witness

Steven Thompson who would have testified that Ms. Berkovich had a computer installed in her

hospital room when she gave birth to her son in order that she be able to watch the Ivy security

cameras from the hospital. The defense proffered that this specific instance of conduct went directly

to the defense that Ms. Berkovich worked literally around-the-clock on behalf of the school and was

always consumed with the well-being of the school. This went directly to raise doubt as to whether

Ms. Berkovich could ever form the intent to take anything from the school she cared so deeply about.


10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Despite this proffer, the court ruled

[y]ou can't introduce it. That is clearly and totally and way over the line is [sic] 352.This is not, you know, a case where you -- and just like I sort of currently [sic] ruledabout whether or not she worked on her anniversary day or birthday, none of that isrelevant. That is simply almost blatant over the top.

(March 19, RT 5176.)

The defense respectfully submits that, in hindsight, this court should see that rulings such as

this contributed to Ms. Berkovich being seen in a less than complete light by the jury that convicted

her. The jury should have been able to decide whether the level of dedication that she exhibited

could have contributed to her making careless errors in using the American Express credit card and

co-signing the school checkbook.

The defense attempted numerous times to have the court revisit its rulings in this regard, but

the court was steadfast in its belief that anything related to the success of Ivy or Ms. Berkovich’s

extreme dedication to it had no relevance in this case. In a typical exchange on this subject, when

the defense sought to offer evidence of Ms. Berkovich’s dedication to the school and the long hours

she worked, the court, in comparing the defendants herein to the defendants in the Enron scandal,

stated that

you can be completely committed to something, the people at Enron were verycommitted to Enron, and they took every dollar that was in Enron and caused Enronto go down.

(March 19, RT 5107.) The court went on to state, in agreement with the prosecution, “I totally and

completely agree that the work ethic of Miss [sic] Berkovich and Mr. Selivanov while nice in

passing has nothing to do with the case.” (March 19, RT 5108.)

During the testimony of defense witness Kimberly Hasserjian, counsel attempted to elicit

testimony regarding Ms. Berkovich’s level of involvement in the maintenance of the facility.

Counsel asked Hasserjian if she had personal knowledge that both defendants spent their entire

wedding anniversary cleaning the school. (March 20, RT 5131.) The court sustained an objection

on relevance grounds and, in front of the jury, exclaimed, “[A]gain, these appeals that might be

interesting and anecdotal stories, you are a fact finder. We are not doing sympathy. Next question.”

(March 20, RT 5131.) This shows the court believed that anything which tended to show Ms.


11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Berkovich was highly dedicated and worked long hours was meant only to appeal to the jury’s

sympathy.

The court failed to recognize that specific instances which would have shown the level of

dedication that Ms. Berkovich had towards the school would have tended to disprove the notion that

she would harm the school by purposefully stealing from it. Such evidence would have further

supported the notion that, on those occasions where she used the wrong credit card or co-signed

school checks, she made honest mistakes or acted negligently, as opposed to having formed criminal

intent.

As additional examples of how the court removed a defense from the jury’s consideration,

attached as Exhibit A is an unredacted version of Defense Exhibit 376, LAUSD Charter School’s

Division Two-Day Site Review of Ivy Academia, dated November 1-2, 2006; and attached as

Exhibit B is an unredacted version of Defense Exhibit 379, LAUSD Charter School’s Division

School Performance Evaluation of Ivy Academia, dated April 16-17, 2009. (Collectively “CSD

Reports.”)

Trial witnesses Aaron Eairleywine and Peter Messeijer conducted the site reviews that

resulted in the CSD Reports. The prosecution objected to these witnesses testifying about portions

of the reports related to academic achievement, the maintenance of the facility, the culture of the

school, the dedication of the administration and staff, and the availability and approachability of the

administrators, which included Ms. Berkovich. The court sustained the prosecution’s objection.

At the close of the defense case, the prosecution again objected to this evidence being

provided to the jury as contained in Exhibits 376 and 379. The court then ordered that Exhibits 376

and 379 redacted. The admission of this evidence through these witnesses was crucial to the defense

because these witnesses were employed by LAUSD CSD and were therefore likely considered to be

more unbiased than other witnesses who may have been permitted to provide similar evidence.

The testimonial evidence excluded and the documentary evidence redacted would have

demonstrated the following: 1) The cohesive approach to an entrepreneurial education at Ivy

Academia, which would have provided reasonable doubt as to whether some American Express


12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

charges were personal in nature as opposed to school related, albeit nontraditional; 2) Ms.

Berkovich’s tireless efforts on behalf of the school as exemplified by the condition of the facility,

the learning environment, and her 24/7 availability and approachability by faculty, staff, parents,

teachers, and students, which would have provided reasonable doubt as to whether personal

American Express charges were criminal or negligent, and whether her co-signing Ivy checks was

done with criminal intent or not. (See Exh. A [“integrate studies rather than traditional model,”

“administration viewed favorably,” “overall school climate supportive, warm, positive,” “campus

noticeably clean, free from graffiti,” “clean campus, friendly atmosphere,” “positive and helpful

environment,” “school culture places special emphasis on support system…administration available,

personable, supportive,” “curriculum strategies engaged students in directed learning”]; Exh. B

[“consistent collaboration by teachers and administration at all four sites and school wide,”

“attractive, well maintained campus environment at all four sites,” “school leader has a strategic

view of the direction for school to achieve mission,” “leadership inspires and supports,” “school site

well maintained,” “engaging campus environment,” “collaborative culture”].)

The decision to exclude this evidence from the jury’s consideration prevented the jury from

properly evaluating Ms. Berkovich’s actions and the conduct alleged. For example, if the evidence

demonstrated the school had a dirty campus covered in graffiti, and the administrators were either

not present or simply not approachable, non-traditional school-related purchases would likely be

viewed differently than if the evidence demonstrated a well maintained facility with a 24/7

approachable administrator, like Ms. Berkovich, who was involved in every facet of school academia

and a healthy learning environment. Here, the jury was unable to consider these factors because they

were presented with incomplete evidence that did not properly portray either Ms. Berkovich’s

unyielding efforts or the resulting school environment. This evidence would have served to negate

the notion that Ms. Berkovich acted with criminal intent and raised reasonable doubt regarding her

use of the American Express card and co-signing school checks.

Both testimonial and documentary evidence of the academic success of Ivy Academia was

also excluded. (See Exh. A p. 1 [“academic achievement exceeds that of nearby schools”]; p. 3


13

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[“2005 API base 854 to a 2006 API level of 854”]; p. 19 [same].) This evidence would have

supported the defense that Ms. Berkovich’s efforts, including her non-traditional school-related

American Express purchases, resulted in the school’s success. The jury was unable to fully weigh

the legitimacy of non-traditional school-related purchases without an understanding of the results

achieved.

This violated Ms. Berkovich’s state and federal rights to confront and cross-examine adverse

witnesses and to present a complete defense by refusing to allow her to rebut the prosecution’s

attempts to color her as a person that was more concerned with providing herself with a comfortable

life of eating out and illegally spending the school’s money. The reality from the defense perspective

was that this was a woman who rarely rested and worked constantly for the benefit of the school.

The specific instances of her conduct and the evaluation reports cited above were not only relevant

to determining whether a given expense was business-related, but also as to whether someone who

worked such long hours and so tirelessly was more likely to make an honest mistake in reaching for

a credit card or co-signing a check than in forming a criminal intent.

The defense was prevented at almost every turn from presenting the other side of the story

regarding Ms. Berkovich’s efforts, both non academic and academic, which had the purpose of

making the school successful. She was presented in a false light because the jury never saw the full

scope of her efforts. Because the jury was not allowed to learn of specific instances in which Ms.

Berkovich dedicated herself to the school, the jury was left with an incorrect understanding of the

circumstances under which the purchases were made and the checks were co-signed. While parents

and teachers interviewed by the defense stressed that the school was successful because it felt like

a family where Ms. Berkovich made sure the children were looked after in a holistic approach, this

evidence was never put before the jury. Such evidence would have raised doubt as to whether

questionable purchases and the co-signing of checks was the result of ordinary negligence as opposed

to criminal negligence or a criminal intent.

This resulted in a denial of Ms. Berkovich’s rights to confront the witnesses against her and

to present a defense. (U.S. Const., 6th Amend.; Pointer v. Texas (1965) 380 U.S. 400, 403-405 [85


14

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

S.Ct. 1065, 1067-1069, 13 L.Ed.2d 923] [holding the confrontation clause applicable to the states];

Cal. Const., art. I, § 15.)

This court’s rulings resulted in the jury hearing a one-sided and inaccurate view of Ms.

Berkovich’s work with Ivy Academia, and she was unable to rebut the inference that her use of the

American Express card and her co-signing of school checks was criminal, as opposed to negligent.

Her right to confront and cross-examine adverse witnesses was infringed because she was not able

to question the conclusions by prosecution witnesses that conduct was criminal with examples of

how Ms. Berkovich dedicated herself to the school in a manner that made her conduct seem far more

the result of ordinary negligence by an over-worked administrator than criminal.

Because the prosecution was able to leave the impression that Ms. Berkovich was stealing

when, in fact, the school was successful because of Ms. Berkovich’s unyielding commitment to the

school, its staff, and its students, she was not on an even playing field with the prosecution.

Evidence of specific instances of Ms. Berkovich’s dedication to the school, the facility, its teachers,

and its students would have not just painted her in a different light, but would have been likely to

provide reasonable doubt as to whether some American Express charges were personal in nature,

whether personal American Express charges were criminal or negligent, and whether her co-signing

Ivy checks was done with criminal intent. As such, this court should grant a new trial.

B. The Error In Not Allowing Ms. Berkovich To Offer SpecificInstances Of Her Commitment To The School Violated Her RightTo Confront The Witnesses Against Her

Under both the federal and state Constitutions, a criminal defendant is guaranteed the right

to confront and cross-examine the witnesses against him. (U.S. Const., 6th Amend.; Pointer v. Texas,

supra, 380 U.S. at pp. 403-405; Cal. Const., art. I, § 15.) The primary purpose of the constitutional

guarantee is to ensure that the defendant is able to conduct a

personal examination and cross examination of the witness, in which [he] has anopportunity, not only of testing the recollection and sifting the conscience of thewitness, but of compelling him to stand face to face with the jury in order that theymay look at him, and judge by his demeanor upon the stand and the manner in whichhe gives his testimony whether he is worthy of belief.


15

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(Mattox v. United States (1895) 156 U.S. 237, 242-243 [15 S.Ct. 337, 339-340, 39 L.Ed. 409];

accord, California v. Green (1970) 399 U.S. 149, 158 [90 S.Ct. 1930, 1935, 26 L.Ed.2d 489]; People

v. Stritzinger (1983) 34 Cal.3d 505, 515; In re Terry (1971) 4 Cal.3d 911, 922; People v. Green

(1971) 3 Cal.3d 981, 989.) Thus,

one of the important objects of the right of confrontation is the guarantee that the factfinder had an adequate opportunity to assess the credibility of witnesses.

(Berger v. California (1969) 393 U.S. 314, 315 [89 S.Ct. 540, 541, 21 L.Ed.2d 508].)

This goes beyond the right to simply cross-examine an accuser, and extends to a defendant’s

right to put forth evidence which diminishes an adverse witness’s credibility. Here, prosecution

witnesses put forth their conclusions that credit card charges were unwarranted and that co-signed

checks were signed with criminal intent. Ms. Berkovich had a right to confront these witnesses with

specific instances of her conduct which tended to disprove she could have or would have formed

criminal intent.

The Sixth Amendment protects a defendant’s right not only to confront the prosecution’s

witnesses, but also the right to present her version of the facts and to present her own witnesses that

support her defense. (See Taylor v. Illinois (1988) 484 U.S. 400, 409 [108 S.Ct. 646, 98 L.Ed.2d

798].) When Ms. Berkovich was barred from presenting the above-cited evidence, she was unable

to show that she might have made errors due to nothing more than being tired and over-worked when

at a check-out counter or being asked to co-sign a check, and this infringed upon her ability to

present a defense and challenge the prosecution witnesses who testified that her expenditures were

improper. (See Id.) This evidence would have provided doubt regarding counts 1, 2 and 25, because

each count required that Ms. Berkovich be found beyond a reasonable doubt to have been, at a

minimum, criminally negligent in counts 1 and 25, and had the specific intent to steal in count 2.

(See CALJIC Nos. 7.26.1 and CALCRIM 1801, as modified and given herein.)

The fundamental character of the right to confront and cross-examine is beyond question.

(See People v. Stritzinger, supra, 34 Cal.3d at p. 515.) As the United States Supreme Court has

stated,


16

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

There are few subjects, perhaps, upon which this Court and other courts have beenmore nearly unanimous than in their expressions of belief that the right ofconfrontation and cross-examination is an essential and fundamental requirement forthe kind of fair trial which is this country's constitutional goal.

(Pointer v. Texas, supra, 380 U.S. at p. 405.) Any denial or significant diminution of this right

deprives the accused of an essential means to test the credibility of her accusers and thus "calls into

question the ultimate 'integrity of the fact-finding process.'" (Chambers v. Mississippi (1973) 410

U.S. 284, 295; see also In re Montgomery (1970) 2 Cal.3d 863, 867.)

The confrontation clause guarantees that the prosecution's case will be subject to "the

rigorous adversarial testing that is the norm of Anglo-American criminal proceedings." (Maryland

v. Craig (1990) 497 U.S. 836 [110 S. Ct. 3157, 111 L. Ed. 2d 666].) Evidence Code section 780

provides that in determining the credibility of a witness, the trier of fact may consider any matter that

has any tendency in reason to prove or disprove the truthfulness of the witness’s testimony. (People

v. Freeman (1994) 8 Cal.4th 450, 494; People v. Herring (1994) 20 Cal.App.4th 1066, 1072; People

v. Cooks (1983) 141 Cal.App.3d 224, 302.) The specific instances of conduct that Ms. Berkovich

was barred from presenting would have tended to disprove the truthfulness of the witnesses against

her by showing she was more likely to have acted with ordinary negligence, rather than with criminal

intent or criminal negligence.

In general, any evidence which tends to impeach the credibility of a witness is relevant. (See

People v. Carpenter (1997) 15 Cal.4th 312, 408.) Thus, when this court refused to allow the defense

to offer evidence of how Ms. Berkovich performed her duties, she was unable to rebut the inference

that her use of the American Express card and co-signing of the school checks was criminal, or

present evidence that her actions were more likely the result of mistake or less than criminal

negligence. The example mentioned above where the court found the instance of Ms. Berkovich

having installed a computer to monitor the school in her hospital room on a weekend as being “over

the top ” is a clear example of what the defense attempted to show and what the court would not

allow. Ms. Berkovich approached her job in a manner wherein she worked tirelessly around-the-

clock to make sure students and faculty had everything they needed, with the ultimate goal being

academic performance, but the jury never heard the specific and compelling instances of this


17

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

evidence. The court thwarted the defense efforts to put forth evidence of the extreme level of

dedication she had to the school. Not only would this have tended to create doubt as to whether

purchases were business-related, it would have provided evidence that Ms. Berkovich was more

likely to make a mistake at the check-out counter when reaching for her credit card and more likely

to negligently co-sign checks on behalf of the school.

The court’s denial of the defense attempts to put forth this evidence was an abuse of

discretion and was not barred by Evidence Code section 352. Evidence Code section 352 gives the

court discretion to

exclude evidence if its probative value is substantially outweighed by the probabilitythat its admission will (a) necessitate undue consumption of time or (b) createsubstantial danger of undue prejudice, of confusing the issues, or of misleading thejury

(Evid. Code, § 352.) The two crucial components of Evidence Code section 352 are "discretion,"

because the trial court's resolution of such matters is entitled to deference, and "undue prejudice,"

because the ultimate object of the section 352 weighing process is a fair trial. (People v. Harris

(1998) 60 Cal.App.4th 727, 736.) In reviewing a trial court's ruling under Evidence Code section

352 for an abuse of discretion, a court reviewing this matter on appeal will not disturb the ruling

unless it is shown that the trial court exercised its discretion in ""'an arbitrary, capricious or patently

absurd manner that resulted in a manifest miscarriage of justice.'"" (People v. Jones (1998) 17

Cal.4th 279, 304; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

Here, the refusal to allow the above-cited evidence was arbitrary and capricious. Ms.

Berkovich needed to present this evidence both to show why she did the things she did, and to

provide doubt as to whether she could or would form the necessary criminal intent to steal from the

school she was so dedicated to serving. Absent the ability to do so, the jury was left with a picture

of Ms. Berkovich and the atmosphere surrounding the charges that was simply not true.


18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

C. The Court’s Failure To Allow The Defense Evidence Of Ms.Berkovich’s Dedication And Commitment To Ivy AcademiaAmounted To The Denial Of A Defense

When the court refused to allow Ms. Berkovich to offer evidence to rebut the prosecution’s

inference that her actions could only have been criminal, this denied her due process right to

effectively put on a defense. Few rights are more fundamental than the constitutional right of a

criminal defendant to present evidence in his or her own defense. (Davis v. Alaska (1974) 415 U.S.

308, 317 [94 S.Ct. 1105, 39 L.Ed.2d 247]; Chambers v. Mississippi (1973) 410 U.S. 284, 302 [93

S.Ct. 1038, 35 L.Ed.2d 297]; In re Martin (1987) 44 Cal.3d 1, 29; People v. Reynolds (1984) 152

Cal.App.3d 42, 45.) The constitutional guarantee of "'a meaningful opportunity to present a

complete defense'" is grounded in the Fourteenth Amendment due process clause and the Sixth

Amendment compulsory process or confrontation clauses. (Crane v. Kentucky (1986) 476 U.S. 683,

690 [106 S.Ct. 2142, 90 L.Ed.2d 636]; In re Martin, supra, 44 Cal.3d at p. 29.) In light of these

principles, it is clear that Ms. Berkovich’s state and federal rights to present a defense were violated

when the trial court refused the defense attempts to offer evidence of specific instances of Ms.

Berkovich’s dedication and commitment to Ivy Academia.

The court’s refusal to allow the defense to present evidence which both supported her version

of the facts and undermined the prosecution’s argument that she harbored a criminal intent worked

to deny Ms. Berkovich a fair trial because the prosecution case must "encounter and 'survive the

crucible of meaningful adversarial testing.'" (Crane v. Kentucky, supra, 476 U.S. at p. 690-691,

quoting United States v. Cronic (1984) 466 U.S. 648, 656 [104 S. Ct. 2039, 80 L. Ed. 2d 657.) This

did not occur here, resulting in error.

D. Ms. Berkovich Was Prejudiced

A new trial must be granted. On appeal, reversal will be required because, under any

standard of prejudice, Ms. Berkovich was prejudiced. Violations of the due process right to confront

adverse witnesses and the right to present a defense are both errors of constitutional magnitude

which require a reviewing court to review such error under the Chapman harmless beyond a


19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

reasonable doubt standard. (Delaware v. Van Arsdall (1990) 475 U.S. 673, 684 [106 S.Ct. 1431, 89

L.Ed.2d 674; Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].)

Here, the defense’s inability to offer evidence of the tireless efforts Ms. Berkovich made

towards the success of Ivy Academia worked to deprive her of her right to present a defense. Trial

counsel was unable to put forth her best arguments for why Ms. Berkovich’s conduct was not

criminal, and the jury was left with a one-sided and false impression regarding the context of the

purchases and checks at issue.

It cannot be said that absent the court’s erroneous refusal to allow the defense to present

evidence of the specific incidents of Ms. Berkovich’s tireless efforts towards the success of Ivy

Academia, there is no doubt as to whether she would have received a more favorable result on the

few charges she was convicted of. Clearly, the jury did not believe the entire prosecution case

because Ms. Berkovich was acquitted of the majority of the charges against her.

The jury acquitting Ms. Berkovich of count 26 and convicting her of count 25 likely occurred

because count 25 required only criminal negligence, and not the specific intent that count 26

required. Thus, the degree to which Ms. Berkovich was negligent was germane to this case and

anything that even slightly added doubt to her level of culpability could have reasonably resulted in

a better result on count 25. Had the court allowed the above-cited evidence, the jury could have

easily found reasonable doubt and acquitted her of the remaining charges.

Even if a reviewing court determines that the Watson standard of prejudice applies to the

instant case, it is reasonably probable that Ms. Berkovich would have received a more favorable

outcome had the trial court allowed the above-referenced evidence. (People v. Watson (1956) 46

Cal.2d 818, 836.) Ms. Berkovich was prejudiced by the court’s erroneous rulings and reversal is

required.


20

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

III.

THE COURT PREJUDICIALLY ERRED IN FAILING TOPROPERLY INSTRUCT THE JURY ON EACH ELEMENT OFTHE OFFENSE OF MISDEMEANOR FALSE TAX RETURNVIOLATIONS IN COUNTS 15, 16, 17, 18 AND 19

A. Introduction And Procedural Background

Ms. Berkovich was acquitted of all of the felony tax charges but found guilty of the lesser-

included misdemeanor violations in each of counts 15 through 19. As instructed herein, the

difference between the felony and misdemeanor violations was mostly one of intent. In order to find

Ms. Berkovich guilty of the felony violations, the jury had to determine that there was a “material”

false representation, and that when she signed the tax return in question, she did not “believe it to

be true and correct as to every material matter.” (CALJIC No. 7.61, as given herein.) As to the

misdemeanors, the jury was instructed that she needed to act voluntarily, “with or without any false

or fraudulent intent,” “in an intentional violation of a known legal duty.” (CALCRIM 16.911, as

given herein.) There was no materiality requirement in the misdemeanor violation, nor any

minimum threshold of falsehood that was required to be proven.

However, California Revenue and Taxation Code section 19701 was modified in 2005 in two

significant ways. First, the statute was modified so that a violation now requires conduct “resulting

in an estimated delinquent tax liability of at least fifteen thousand dollars ($15,000)” per count.

(Ibid.) This change is recognized in the more recent pattern jury instructions, where CALCRIM

2810 states, in pertinent part:

AND [¶] 4. The defendant's (supplying of (false/[or] fraudulent) information/[or](making[,]/[or] verifying[,]/[or] signing[,]/[or] rendering) the (false/[or] fraudulent)(tax return/[or] statement)) resulted in an estimated delinquent tax liability of atleast fifteen thousand dollars.

(CALCRIM 2810, emphasis added.)

The commentary to CALCRIM 2810 states

It is not completely clear from this language whether the requirement of an estimateddelinquent tax liability of at least fifteen thousand dollars applies both to the failureto file a return and to the making, etc. of a false or fraudulent return. The LegislativeCounsel's Digest of Assembly Bill No. 139, the bill that added this provision to thestatute, indicates that this provision is intended to apply to all the violations specifiedin Revenue and Taxation Code section 19701(a), including the failure to file a return


21

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

or supply required information. (See Legis. Counsel's Dig., Assem. Bill No. 139(2005-2006 Reg. Sess.) Stats. 2005, ch. 74, par. (34).) The committee has adoptedthis interpretation pending clarification from either the Legislature or case law.

Thus, while there may be some question as to whether the $15,000 threshold applies in cases

involving the complete failure to file a return, in cases like the one at bar, where the allegation is a

“false or fraudulent return,” The Legislature has determined that anything less than a $15,000

discrepancy shall not be treated criminally. This court failed to instruct the jury on an element of the

lesser offense, and, as will be shown, a new trial must be granted for this reason as to each of counts

15-19.

The second change to the statute in 2005 added a requirement that the criminal conduct took

place “repeatedly over a period of two years or more . . . .” (Section 19701, subd. (a), as amended.)

In recognition of this change, CALCRIM 2810 now states, in pertinent part,

1. The defendant repeatedly (supplied information to the Franchise Tax Board/[or](made[,]/[or] verified[,]/[or] signed[,]/[or] rendered [a] tax return[s]/[or]statement[s]) over a period of two years or more;

(CALCRIM 2810, emphasis added.)

Counts 15 through 19 each alleged a single false return during the years 2004 through 2008,

inclusive. Thus, not only was the jury instructed erroneously, but because of the time frame

involved, Ms. Berkovich could, at most, have been charged and convicted of two misdemeanor

counts, not the five she was convicted of herein.3

The court’s erroneous instruction which failed to include two important and necessary

elements of the lesser offenses in counts 15 through 19 violated Ms. Berkovich’s state and federal

rights to due process to have a jury determine her guilty beyond a reasonable doubt of every element

of the charged offense, and a new trial is required. (U.S. Const. 5th, 6th & 14th Amends; Cal. Const,

Ms. Berkovich reserves the right to argue that the "at least two years" language shows a legislative3

intent that the prosecution could not charge her with more than one violation for the single courseof conduct between and including 2004 through 2008. This argument is, at this point, academic,because the convictions in counts 15 through 19 cannot stand. It is presented here to preserve it inthe unlikely event that this court fails to recognize a new trial must be granted.


22

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

art. I, § 15; United States v. Gaudin (1995) 515 U.S. 506, 509–510 [132 L. Ed. 2d 444, 115 S. Ct.

2310, 2313–2314]; People v. Cummings (1993) 4 Cal.4th 1233, 1311.)

B. The Court Erred In Failing To Properly Instruct The Jury OnAll Elements Of The Charged Offenses In Counts 15 Through 19

A trial court must instruct, even without request, on the general principles of law relevant to

and governing the case. (People v. Cummings, supra, 4 Cal.4th at p. 1311; People v. Ellis (1999)

69 Cal.App.4th 1334, 1339.) That obligation includes instructions on all of the elements of a

charged offense. (People v. Dyer (1988) 45 Cal.3d 26, 60.) Failure to instruct on an element of a

charged offense or telling a jury that an element must be presumed as a matter of law denies the

defendant his due process rights, subverts the presumption of innocence and invades the

truth-finding task of the jury. (Sandstrom v. Montana (1979) 442 U.S. 510, 523 [61 L.Ed.2d 39, 99

S.Ct. 2450]; People v. Cummings, supra, at p. 1314.)

A person is only guilty of a misdemeanor violation of section 19701 if it is proven she filed

false or fraudulent returns “over a period of two years or more” and that such returns “resulted in an

estimated delinquent tax liability of at least fifteen thousand dollars.” The Legislature, in amending

the statute in 2005, dictated that the time frame must be at least two years, and that $15,000 is a

minimum threshold for criminal liability in such cases.

In the instant case, the court, in relying on the CALJIC instruction and not using the

CALCRIM instruction which takes the substantive changes in the law into account, failed to instruct

on necessary elements of the lesser offenses charged in counts 15-19. The instruction was clearly

insufficient and erroneous because two elements of the offense were not included.

C. The Error Was Not Invited Or Forfeited

Trial counsel did not request that the court instruct with the correct CALCRIM on these

counts, but she also did not request that the court fail to instruct on the “minimum period of two

years” or the $15,000 threshold, nor did she invite the court to do so in any manner. In fact, when

discussing the instruction on the felony violations, counsel objected to the notion that the jury not

be instructed that some amount of owed taxes had to be proven beyond it simply being found to be

“material.” (See March 25, RT 6231-6232.) As to the misdemeanor, it is now clear that the


23

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Legislature has determined that nothing less than $15,000 is serious or material enough to warrant

a criminal conviction, and that the misconduct must include more than a single year’s tax return.

Because the jury made no such findings, a new trial on each of counts 15 through 19 must be

granted.

The trial court's duty to fully and correctly instruct the jury on the basic principles oflaw relevant to the issues raised by the evidence in a criminal case is so importantthat it cannot be nullified by defense counsel's negligent or mistaken failure to objectto an erroneous instruction or the failure to request an appropriate instruction.

(People v. Avalos (1984) 37 Cal.3d 216, 229.) Consequently, a forfeiture of a challenge alleging

instructional error regarding the basic principles of law at issue in a criminal trial will only be found

if "[t]he record . . . reflect[s] that counsel had a deliberate tactical purpose" for its omission and

"'deliberately caused the court to fail to fully instruct.'" (Ibid.)

There was no “deliberate tactical purpose” here, and counsel's failure to object to the

instruction given was the very same "negligent or mistaken" acquiescence that cannot support a

finding of forfeiture. (Ibid; People v. Moon (2005) 37 Cal.4th 1, 28 [no forfeiture where defense

counsel "acquiesced in the instruction" by stating "'[t]hat's correct'" when the court stated its

assumption that both counsel were jointly requesting the instruction, and no tactical reason for

acquiescence was apparent]; People v. Jones (1997) 58 Cal.App.4th 693, 708 [defense counsel's

statement that "'I don't have any problem with [disputed instruction] either way' did not constitute

forfeiture of claim on appeal].)

D. The Failure To Instruct On Two Elements Of The Offense InCounts 15, 16, 17, 18 And 19 Was Prejudicial And Reversal IsRequired

The United States Supreme Court has classified constitutional errors into two groups:

structural errors, which are subject to automatic reversal; and trial errors, subject to a harmless error

analysis. (See, e.g., Neder v. United States (1999) 527 U.S. 1 [144 L.Ed. 2d 35, 119 S.Ct. 1827], and

Arizona v. Fulminante (1991) 499 U.S. 279 [113 L.Ed.2d 302, 111 S.Ct. 1246], opn. of Rehnquist,

C. J., for the court as to pt. II).)

Structural errors comprise a very limited class of cases and occur where there is a defect

affecting the framework within which the trial proceeds rather than simply an error in the trial


24

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

process itself. (Neder v. United States, supra, 527 U.S. at pp. 8-9.) Structural errors have been

found where there was a complete denial of counsel (Gideon v. Wainwright (1963) 372 U.S. 335 [9

L.Ed.2d 799, 83 S.Ct. 792]), where the trial judge was biased (Tumey v. Ohio (1927) 273 U.S. 510

[71 L.Ed. 749, 47 S.Ct. 437]), where there was racial discrimination in the selection of the grand jury

(Vasquez v. Hillery (1986) 474 U.S. 254 [88 L.Ed.2d 598, 106 S.Ct. 617]), where there was a denial

of self-representation (McKaskle v. Wiggins (1984) 465 U.S. 168 [79 L.Ed.2d 122, 104 S.Ct. 944]),

where there was a denial of a public trial (Waller v. Georgia (1984) 467 U.S. 39 [81 L.Ed. 2d 31,

104 S.Ct. 2210]), and where the reasonable doubt instruction was defective (Sullivan v. Louisiana

(1993) 508 U.S. 275 [124 L.Ed.2d 182, 113 S.Ct. 2078]).

Most constitutional errors are subject to harmless error analysis because they do not

necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt

or innocence. (Neder v. United States, supra, 527 U.S. at pp. 8-9.) Harmless error analysis has been

utilized by the Supreme Court where improper instructions have been given on an element of an

offense (Yates v. Evatt (1991) 500 U.S. 391 [114 L.Ed.2d 432, 111 S.Ct. 1884] [mandatory

rebuttable presumption], overruled on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72,

fn. 4 [116 L.Ed.2d 385, 112 S.Ct. 475]; Carella v. California (1989) 491 U.S. 263 [105 L.Ed.2d 218,

109 S.Ct. 2419] [mandatory conclusive presumption]; Pope v. Illinois (1987) 481 U.S. 497 [95

L.Ed.2d 439, 107 S.Ct. 1918] [misstatement of element]; Rose v. Clark (1986) 478 U.S. 570 [92

L.Ed.2d 460, 106 S.Ct. 3101] [mandatory rebuttable presumption], overruled on other grounds in

Brecht v. Abrahamson (1993) 507 U.S. 619, 637 [23 L.Ed.2d 353, 113 S.Ct. 1710, 1721]) and where

elements of an offense have been omitted (Johnson v. United States (1997) 520 U.S. 461 [37 L.Ed.2d

718, 117 S.Ct. 1544]; California v. Roy (1996) 519 U.S. 2 [136 L.Ed.2d 266, 117 S.Ct. 337].) Neder

involved a failure to instruct the jury on an element of the offense, specifically the requirement that

a misstatement on a tax form in a tax fraud case must be material. The Supreme Court concluded

that the error was subject to harmless error analysis. (Neder v. United States, supra, 527 U.S. at pp.

7-8.)


25

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The failure to instruct the jury on an element of the charged offense constitutes federal

constitutional error subject to a Chapman harmless error analysis. (Chapman v. California (1967)

386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Flood (1998) 18 Cal.4th 470, 479-480, 491,

499; People v. Magee (2003) 107 Cal.App.4th 188, 194.) Under the Chapman standard, the error

is reversible unless it can be shown to have been harmless beyond a reasonable doubt.

Here, the failure to expressly instruct the jury that it must find that Ms. Berkovich’s

erroneous tax returns in each count resulted in an estimated delinquent tax liability of at least

$15,0000 cannot be deemed harmless. The prosecutor, in arguing for conviction on counts 15

through 19, made no distinction between the felony and misdemeanors and argued before the jury

that it was not necessary to prove that any additional tax was owed. (See March 6, RT 6269-6270.)

This, of course, was in conflict with the law.

Absent an instruction on the $15,000 threshold, the jury more likely than not convicted Ms.

Berkovich without regard to whether her tax returns resulted in any particular change in tax liability.

Moreover, the charges in counts 15-19, charged as felonies, each related to a single years’ tax return.

However, the misdemeanor violation requires a period of “no less than two years.” It is obvious that

the jury never considered that element of the offense. Additionally, because the time period involved

in total was only five years, even if the prosecution could conceivably charge successive two-year

periods as distinct counts, there could be no more than two such periods in the time frame covered

by all five counts.4

Without proper instruction that the tax returns at issue in each count resulted in an estimated

delinquent tax liability of at least $15,000, and that the conduct in each count took place over a

period of at least two years, it cannot be said that the failure to properly instruct on all the elements

of a misdemeanor violation of Revenue and Taxation Code section 19701 was harmless under the

Chapman standard. A new trial is required.

This is an issue that will need to be considered on retrial, should the prosecution seek retrial. Of4

course, Ms. Berkovich cannot be retried on the felonies alleged in counts 15 through 19, because thejury acquitted her of each charge before considering the misdemeanors. Thus, retrial on the feloniesis barred under Double Jeopardy principles.


26

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IV.

MS. BERKOVICH JOINS IN ALL ISSUES RAISED BY HERCODEFENDANT THAT MAY ACCRUE TO HER BENEFIT

Ms. Berkovich specifically joins in the issues raised in her codefendant’s motion for a new

trial and any briefs filed on his behalf to the extent that they may benefit her. (See generally Cal.

Rules of Court, rule 8.200(a)(5); People v. Castillo (1991) 233 Cal.App.3d 36, 51; People v. Stone

(1981) 117 Cal.App.3d 15, 19, fn. 5; People v. Smith (1970) 4 Cal.App.3d 41, 44.)


27

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CONCLUSION

Based on the foregoing, it is respectfully submitted that a new trial must be granted on counts

1, 2, 15, 16, 17, 18, 19 and 25.

DATED: September 4, 2013 Respectfully submitted,KAPLAN MARINO, PC

________________________________NINA MARINO Attorney for TATYANA BERKOVICH


28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Exhibit A


12345678910111213141516171819202122232425262728

Exhibit B


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PROOF OF SERVICE BY MAIL

I, the undersigned, declare as follows: I am over eighteen (18) years of age and not a partyto the within action. My business address is 9454 Wilshire Boulevard, Suite 500, Beverly Hills,California 90212.

On the date indicated below, I served the within

NOTICE OF MOTION AND MOTION FOR A NEW TRIAL;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

on each of the following, by placing a true copy thereof in a sealed envelope with postage fullyprepaid, in the United States Mail at Beverly Hills, California addressed as follows:

Sandi Roth, Deputy District AttorneyOffice of the LA County District Attorney6230 Sylmar Avenue, Ste. 201Van Nuys, CA 91401

Dana Aratani, District AttorneyOffice of the LA County District Attorney210 W Temple Street, No. 18000Los Angeles, CA 90012

Jeffrey Howard Rutherford, Esq. Nimrod Haim Aviad, Esq. Crowell & Moring LLP515 South Flower Street, 40th FloorLos Angeles, CA 90071[attorneys for co-defendant Eugene Selivanov]

I declare under the penalty of perjury that the foregoing is true and correct. Executed this 4th dayof September, 2013, at Beverly Hills, California.

_______________________________Lilia Madrid


nina marino (state bar no. 142815) kaplan marino, pc

Documents