Filed 6/24/24 P. v. Fink CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID MARK FINK,

Defendant and Appellant.

 B317362

 (Los Angeles County

 Super. Ct. No. BA435472)

APPEAL from a judgment and orders of the Superior Court 

of Los Angeles County, Mildred Escobedo, Larry P. Fidler, and

Henry J. Hall, Judges. Affirmed in part, and vacated and 

remanded in part.

Mary Jo Strnad; Aaron J. Schechter, under appointments

by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Kenneth C. Byrne, Supervising 

Deputy Attorney General, and Susan S. Kim, Deputy Attorney

General, for Plaintiff and Respondent.
2

David Mark Fink appeals from convictions for obtaining 

money by false pretenses, offering false instruments, identity 

theft, grand theft, and attempted grand theft. His convictions 

were based on a criminal scheme spanning several years in which

Fink sent numerous writs of execution to sheriff’s departments

throughout California to fraudulently obtain and execute on 

monetary judgments in civil cases. Fink challenges his 

convictions and sentence.

Fink argues the trial court improperly revoked his self 

represented (pro per) status and abused its discretion when it 

refused to dismiss the case for a violation of his right to a speedy 

trial after his trial was delayed because of the COVID-19 

pandemic. Fink also seeks appellate review of the trial court’s 

proceedings on and subsequent denial of his motion under People 

v. Pitchess (1974) 11 Cal.3d 531 (Pitchess), for discovery of the 

personnel records of the sheriff’s deputy who led the investigation 

of his crimes. In addition, he complains there was insufficient 

evidence to support 16 of his convictions for violating Penal Code1

section 532 (theft by false pretenses).

With respect to sentencing, Fink asserts the trial court 

erred in ordering victim restitution on two counts, for which the 

undisputed evidence showed the stolen funds were returned to 

the victims. Moreover, he argues that his sentences on various 

counts and enhancements must be vacated in light of recent 

amendments to sections 654, 1170, subdivision (b)(6), and 186.11.

Only Fink’s complaints about his sentence have merit. We 

affirm the judgment in all other respects.

1 Statutory references are to the Penal Code unless 

otherwise indicated. 
3

FACTUAL AND PROCEDURAL BACKGROUND2

A. Fink’s Scheme To Collect on Small Claims Judgments

Fink has prior convictions for burglary, identity theft, 

forgery, and other financial fraud crimes in multiple separate 

cases, including one involving conduct similar to this case.

Fink’s current convictions are based on a scheme of

collecting on judgments using false or forged legal documents to 

make it appear that small claims judgment creditors had 

assigned those judgments to him.

At trial, the evidence showed Fink carried out this scheme

using shell corporate entities (USJRU, Inc. and CollectionUSA)

and false and stolen identities and aliases (David Carter, David 

Anderson, and David Jones). Using his aliases, Fink set up 

mailbox accounts for his fictitious companies and falsified notary 

stamps to create computer-generated “assignments” to USJRU or 

CollectionUSA of small claims judgments entered against large 

companies like AT&T, Wells Fargo, JCPenney, and Best Buy.

Fink also created fraudulent writs of execution, which he 

forwarded to sheriff’s departments across California. Acting on 

the writs, the sheriffs either levied funds from the judgment 

debtor’s bank or, in some cases, conducted a “till tap” by seizing

cash at the judgment debtor’s place of business. The collected 

funds were transmitted to the county, which in turn, acting on 

instructions from Fink, would send the funds to bank accounts in 

Idaho that Fink had opened.

2 The facts and procedural history are summarized here to 

provide context. Elsewhere in the opinion, the facts relevant to 

each issue are described in detail.
4

B. The Discovery of Fink’s Crimes, and Fink’s Arrest

In January 2015, Deputy Chief Sarkis Ohannessian of the 

San Bernardino County Sheriff’s Department (SBSD) worked in 

the court services division, which processed levies and enforced 

civil writs of execution. Through an investigation of SBSD’s files, 

Ohannessian discovered several writs submitted by individuals 

named David Carter or David Anderson that he suspected were 

fraudulent or forged based on anomalous party names, dates, and

information, as compared to the respective court minutes. He 

discovered that each of these suspicious writs arose from a small 

claims case where a judgment had been entered for or assigned to 

someone other than Fink, and no writ had ever been issued to 

Fink, his aliases, or his shell companies. 

Ohannessian also investigated USJRU, discovering it had a 

mailbox that was leased by David Anderson, using an Ohio 

driver’s license. Ohannessian learned USJRU’s mail was 

forwarded from the mailbox to three places in Idaho, and that 

David Anderson’s mail was forwarded from a separate Los 

Angeles mailbox to an Idaho post office. The postmaster in Idaho 

was familiar with a “David Anderson,” knowing him as someone 

who frequented the post office to get his mail. The postmaster 

identified Fink as David Anderson. 

In March 2015, Idaho authorities placed Fink under 

surveillance and then arrested him.

3 They later seized computer 

3 Idaho authorities arrested Fink for providing false 

information. When first approached, Fink provided an Ohio 

driver’s license and identified himself as David Anderson. 

Authorities learned Fink’s car was also registered to David 

Anderson. A search of the car revealed a wallet with David 

Anderson’s Ohio driver’s license and bank cards with the name of 
5

hard drives, USB drives, cell phones, and other evidence after 

executing a search warrant at Fink’s residence. Authorities also 

searched the physical and electronic files of USJRU. They

collected evidence, including fake identification cards, bank 

cards, and driver’s licenses with Fink’s picture and the names

David Carter and David Anderson. Ohannessian determined the 

names David Carter, David Anderson, and David Jones were

Fink’s aliases.

C. Trial Proceedings

1. The charges

On January 6, 2017, an information charged Fink with

(1) 28 counts of obtaining money, labor, or property by false 

pretenses, in violation of section 532, subdivision (a) (counts 1-4, 

9-12, 15, 18-23, 27, 30, 35, 41-42, 45-47, 50, 53-56); (2) 18 counts 

of procuring or offering a false or forged instrument, in violation 

of section 115, subdivision (a) (counts 5, 7, 13, 16, 24, 28, 31, 33, 

36, 38, 43, 48, 51, 58-62); (3) 13 counts of identity theft, in 

violation of section 530.5, subdivision (a) (counts 6, 8, 14, 17, 25, 

29, 32, 34, 37, 39, 44, 49, 52); (4) one count of grand theft of 

personal property, in violation of section 487, subdivision (a) 

(count 57); and (5) one count of attempted grand theft, in 

violation of sections 664 and 487, subdivision (a) (count 63).

4

The information also contained four special allegations.

First, it alleged that, under section 186.11, subdivision (a)(3), the 

David Anderson or USJRU or both. A search of the name “David 

Anderson” in a national database of driver’s licenses revealed the 

photograph did not match Fink’s picture on the driver’s license. 

4 There was no count 26 or count 40 in the information. 
6

offenses in counts 1 through 25, 27 through 39, and 41 through 

57 were related felonies involving fraud, embezzlement, a pattern 

of related felony conduct, and the taking of more than $100,000. 

Second, it alleged that, prior to the commission of the offenses in 

counts 1 through 25, 27 through 39, and 41 through 57, Fink had 

been convicted of three serious or violent felonies and thus was 

subject to sentencing under the three strikes law (§§ 667, 

subds. (b)-(j), 1170.12). Third, it alleged that, in the commission 

of the offenses in counts 1 through 4, 9 through 12, 15, 18 

through 23, 27, 30, 35, 41 through 42, 45 through 47, 50, and 53 

through 57, Fink took, damaged, and destroyed property worth 

more than $65,000, within the meaning of section 12022.6, 

subdivision (a)(1). Fourth, it alleged that the offenses in counts 1 

through 4, 9 through 12, 15, 18 through 23, 27, 30, 35, 41 through 

42, 45 through 47, 50, and 53 through 57 were thefts of over 

$100,000, within the meaning of section 1203.045, 

subdivision (a). 

On October 19, 2018, Fink pleaded not guilty to all charges. 

2. Pretrial proceedings

From his first appearance in September 2018 through the 

end of October 2020, Fink represented himself, with attorneys 

appointed as his standby or advisory counsel. In pretrial 

hearings, Fink cross-examined witnesses, presented evidence,

and filed motions, including a Pitchess motion and motions to 

disqualify the judge. The trial court repeatedly admonished Fink 

for improper questioning of witnesses, misrepresenting the 

evidence and law, and delaying and disrupting the proceedings. 

After several warnings, the court terminated Fink’s pro per 
7

status.5 The court then appointed Fink’s advisory counsel to 

represent him. 

From his first appearance in September 2018 through midMarch 2020, Fink waived his right to a speedy trial (commonly 

referred to as “waiving time”), requested continuances, and 

acquiesced to various continuances without objection. However, 

from March 2020 through the fall of 2021, Fink’s case was 

continued because of orders issued by the Chief Justice of 

California and the presiding judge of the Los Angeles County 

Superior Court (LASC) in response to the COVID-19 pandemic.

In July 2020, Fink withdrew his general time waiver. After that,

with one exception, Fink refused to waive time,

6 objected to the 

continuance of the trial, and twice moved to dismiss his case for 

violation of his speedy trial rights. The court denied his motions 

and overruled his objections.7

5 Judge Larry P. Fidler revoked Fink’s pro per status at a 

hearing on November 4, 2020.

6 Fink waived time at a hearing in February 2020, during 

which the court considered his request for modification of the 

terms of his electronic monitoring to allow him to visit his father 

and sister. 

7 Judge Fidler denied Fink’s first motion to dismiss on 

July 17, 2020. Judge Mildred Escobedo denied Fink’s second 

motion on October 22, 2021. 
8

3. The trial

On October 27, 2021, Fink waived his right to a jury trial

and proceeded by way of a bench trial. The trial began the next 

day.

8

The prosecution presented testimony from Ohannessian, 

California Department of Justice investigators, and Idaho law 

enforcement officers about their investigations of Fink’s scheme

and the cases from across California in which Fink used false or 

forged documents to obtain writs of execution and collect small 

claims judgments. The prosecution also presented the testimony

of victims who had obtained a judgment in a small claims case 

but had not assigned the judgment to Fink, USJRU, 

CollectionUSA, David Carter, David Anderson, or David Jones.

In addition, the prosecution presented evidence from notaries 

who testified that, without their knowledge or authorization,

Fink’s aliases and shell companies had used their notary stamps 

or names to notarize false documents. 

Forensic data experts and computer forensic examiners 

testified that they analyzed the computer hard drives, USB 

drives, cell phones, and other evidence seized from Fink’s home in 

Idaho. They testified that Fink’s hard drives contained 

documents with case names and other information associated 

with the victims’ cases. 

The prosecution also presented financial evidence and bank 

records. The evidence showed payments corresponding to those 

collected by the sheriff’s departments that were sent to USJRU

and made payable to USJRU or David Anderson to satisfy 

judgments in numerous small claims cases. The evidence also 

8 Judge Henry J. Hall presided over Fink’s trial and 

sentencing. 
9

showed the total amount Fink took from victims exceeded 

$100,000. However, not all the funds collected by the sheriff’s

departments were sent to Fink. In some cases, even though the 

sheriff executed the writ and collected the funds from the 

judgment debtor, the debtor or a county employee discovered the 

writ was invalid and stopped the payment before it was sent to 

USJRU. In another instance, Fink (posing as David Anderson) 

directed the county to return the funds to the debtor. 

4. The convictions, sentences, and appeal

On November 18, 2021, the court found Fink guilty on

counts 1 through 5, count 7, counts 9 through 25, counts 28 

through 39, counts 41 through 43, and counts 45 through 63. The 

court found true the allegations under sections 186.11 and 

12022.6. The court dismissed counts 6, 8, 27, and 44 on the 

prosecution’s motion.

Fink admitted the prior strike allegation based on a 

1983 conviction, and the trial court found the allegation true.

On December 16, 2021, the court sentenced Fink to a total 

state prison term of 40 years four months, as follows:9

(1) five years on count 16 (the middle term of two years, 

doubled under the three strikes law, plus a one-year

enhancement under sections 186.11 and 12022.6, 

subdivision (a)(1)); 

9 Although the court stated Fink’s total sentence was 

40 years four months, the sentencing transcript shows the court 

imposed individual sentences that instead total 41 years. 

Notwithstanding this discrepancy, because we are vacating 

Fink’s sentence and remanding for a full resentencing hearing, 

the court will be able to revisit all its prior sentencing decisions.
10

(2) a consecutive term of 16 months on each of counts 1, 3, 

4, 10, 15, 18, 19, 20, 21, 23, 35, 41, 50, 55, and 59 (one-third the 

middle term of 24 months, doubled to 16 months under the three 

strikes law);

(3) a consecutive term of eight months on each of counts 2, 

5, 7, 11, 12, 13, 22, 24, 28, 31, 33, 36, 38, 42, 43, 46, 47, 48, 51, 56, 

58, 60, 61, and 62 (one-third the middle term of 24 months);

10

(4) a term of two years on each of counts 9, 14, 17, 25, 29, 

30, 32, 34, 37, 39, 45, 49, 52, 53, 54, and 57 (the middle term), 

and stayed the execution under section 654, with the stay to 

become permanent upon the completion of the sentence for 

count 16; and 

(5) a term of one year on count 63 (the middle term), and 

stayed the execution under section 654, with the stay to become 

permanent upon the completion of the sentence for count 16.

Fink received a total of 4,866 days of presentence custody 

credit, consisting of 2,433 actual days and 2,433 good time or 

work time days.

The trial court ordered Fink to pay victim restitution as 

follows: $22,930.23 to Best Buy, $3,782 to Staples, $9,269.27 to 

Volvo, $9,196.82 to Jack in the Box, $8,243.73 to PacBell,

$10,031.18 to Bridgestone, $14,916.71 to Unified Parking,

$4,948.60 to Toys [R] Us, $9,680.97 to El Pollo Loco, $6,538.61 to 

Sears, and $2,343.61 to California Parking Systems. 

Fink timely appealed. 

10 The court exercised its discretion to dismiss the strike 

allegation for each of these counts because there was no actual 

gain to Fink or loss to the victim. 
11

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion When It 

Revoked Fink’s Pro Per Status

1. Factual background

a. The court grants Fink’s motion to 

represent himself and advises Fink that 

he will be held to the same standards as 

an attorney; Fink represents himself with 

the aid of standby and advisory counsel

At the felony arraignment hearing on March 26, 2018, 

before Judge Deborah Brazil, Fink asserted his Sixth and 

Fourteenth Amendment right under Faretta v. California (1975) 

422 U.S. 806 [95 S.Ct. 2525] (Faretta) to represent himself. The 

court required Fink to complete a waiver of counsel form 

(commonly referred to as a Faretta waiver) to ensure Fink 

understood the dangers and consequences of self-representation. 

The court advised Fink that self-representation was almost 

always an unwise choice and would not work to his advantage. 

The court explained further that Fink would not be helped or 

treated with special leniency by the court or the prosecutor, that 

he would be held to the same standards of conduct as an 

attorney, and that he would not be able to claim later that he 

made a mistake or that he received ineffective assistance of 

counsel. 

With the aid of standby and advisory counsel, Fink 

represented himself for several years before trial. In pro per, 

Fink appeared before judges and filed pretrial motions.
12

b. Fink claims the court deceived him in 

order to get him to waive his speedy trial 

rights

On July 7, 2020, Fink filed a motion to dismiss based on a 

violation of his speedy trial rights. Therein, Fink asserted, 

without any evidentiary support, that the trial court had “held 

secret hearings—absent notice nor opportunity to be heard—

continuing the case using illegal boilerplate Covid-19 language; 

that violated Defendant’s right to have his dispositive pretrial 

issues decided by his speedy trial. [¶] The Covid-19 pandemic is 

not a license for courts to holiday while citizens wrongly jailed 

languish in squallor [sic].” 

On July 17, 2020, the court (Judge Larry P. Fidler) held a 

hearing on Fink’s motion to dismiss. During the hearing, Fink 

repeated his unsupported assertion that, before any state or local 

emergency order had been issued, the court deceived him into 

agreeing to a 120-day general time waiver based on its knowledge 

that all court proceedings would soon be suspended because of 

the COVID-19 pandemic. Specifically, Fink asserted: “If there 

hadn’t been a waiver, it would have been—have expired April 11[, 

2020]. And your honor came to me with a 120-day waiver. Your 

honor knew what was going on. You knew that the order was 

coming down. I didn’t know that. You asked me about a 120-day 

waiver. You never asked me for a 120-day waiver because [sic]. 

You knew what was going on. You didn’t inform me that, hey, we 

probably won’t even have the hearing in May.” The court rejected 

his assertion, explaining to Fink that, at the time it accepted his 

time waiver, the court had no information beyond what it had 

shared with him; that the Chief Justice of California, with whom 

the court did not have direct interactions, subsequently issued a

statewide emergency order suspending all jury trials because of 
13

the pandemic; and that subsequently the LASC supervising judge 

informed the court of the emergency order, after which the court 

provided notice to the parties accordingly.

c. Pretrial litigation concerning recorded 

jail calls

While Fink was in pro per, law enforcement recorded a 

number of Fink’s jail calls with his investigator. In November 

2016, Fink filed an administrative complaint against 

Ohannessian based on Ohannessian listening to the jail calls. 

The prosecutor brought the issue to the trial court’s attention and 

requested that the court conduct an in-camera review of the 

recorded calls. After conducting an in-camera review, the court 

ordered that all recordings be provided to the defense and then 

deleted from the prosecution’s and SBSD’s records. 

Thereafter, Fink filed several motions related to the 

monitoring of his jail calls: motion to recuse the prosecution 

team and the Attorney General’s Office; motion to dismiss the 

information for intrusion into Sixth Amendment privilege; and 

motion for legal remedy for stolen defense strategy. The court 

held an evidentiary hearing on Fink’s motions over several days: 

July 17, 2020; August 5, 6, and 20, 2020; September 10, 2020;

and October 15 and 30, 2020.11 It was at the end of these 

proceedings, on October 30, 2020, that the court informed Fink it 

would be revoking his pro per status. On November 4, 2020, the 

court revoked Fink’s pro per status.

11 Judge Fidler presided over the evidentiary hearing.
14

d. July 17, 2020 proceedings

During the evidentiary hearing on July 17, 2020, Fink 

claimed that the prosecution improperly withheld or destroyed 

evidence, specifically 80 maps that purportedly showed the 

location of his cell phone calls. However, when questioned about 

the 80 maps, Ohannessian explained that only one map of calls 

existed and that it had been produced to Fink. The court ruled 

that the prosecution had complied with Fink’s discovery requests 

and that there was no evidence to support Fink’s belief about the 

destruction or withholding of 80 maps. However, even after the 

court’s ruling, Fink continued to refer to “80 maps” in his 

questions to various witnesses. As a result, the court directed 

Fink to stop referring to evidence that the witness testified did 

not exist because it misstated the evidence and made a “mess” of 

the record. Even after the court issued its warning, Fink 

continued to refer to “80 maps,” and again, the court directed 

Fink to stop referring to that evidence. 

Fink also claimed that Ohannessian improperly redacted 

information from a document. However, several witnesses 

testified that no information had been deleted from the 

document. Notwithstanding this testimony, Fink continued to 

ask questions that assumed the document had been altered, and 

again the court cautioned Fink that his questions assumed facts 

for which there was no factual basis. 

Ohannessian testified that while listening to Fink’s jail 

calls, he came across one call between Fink and an attorney’s 

office, and that he stopped listening to the call after the woman 
15

who answered the call said, “Law Office.”12 Fink later asked 

Ohannessian, “So you didn’t tell the court[13] that you had 

listened to a call between me and my attorney?” This prompted 

the court to admonish Fink that he was misstating the record.14

Fink also misrepresented the record when he claimed that 

the trial court had previously made a factual finding that emails 

between the investigators in Idaho and California disclosed 

information showing they had improperly monitored his jail calls 

and thus discovered his trial strategy. Fink insisted the court 

had made the finding on the record. However, the court did not 

believe it had made such a ruling, and a review of the transcript 

revealed the court had not made that finding about the emails. 

Ultimately, Fink conceded the “finding” was not based on the 

record but instead on his personal notes. 

e. The August 5, 6, and 20, 2020 

proceedings

On August 5, 2020, during his examination of 

Ohannessian, Fink again asked about the call to his former 

attorney’s office, “So at the last hearing you testified that you 

listened to [my attorney’s] phone call, my former attorney, while I 

was on hold. And you testified as soon as she said ‘law office’ you 

12 Ohannessian testified that he subsequently notified the jail 

that the phone number needed to be blocked from being recorded 

since it belonged to an attorney’s office. 

13 Fink was referring to the judge in San Bernardino County 

who had signed the jail calls destruction order. 

14 The court also told Fink, “You’re either trying to mislead 

me or mislead someone who is going to review this record, and 

I’m not going to stand for it.” 
16

hung up. Is that correct?” Ohannessian responded that Fink was 

misstating the testimony and again reiterated, “as soon as it says 

‘law office’ and you’re asking for the attorney, I hung up.” Fink 

persisted, “If we had the audio of that call, we would know 

exactly what you listened to.” Later, after Ohannessian had 

responded to one of Fink’s questions, Fink told Ohannessian, 

“You didn’t answer my question.” The court told Fink that 

Ohannessian had answered his question and admonished Fink 

that he was arguing with the witness “because [the witness] is 

not saying what you want him to say.” 

On August 6, 2020, while questioning Ohannessian, Fink 

expressed his view that SBSD had destroyed evidence of the 

records of his jail calls. Specifically, Fink stated after 

Ohannessian responded to one of his questions about emails 

produced to Fink in discovery, “Not the ones from [the 

San Bernardino County jail official] destroying the evidence with 

[the jail phone system provider].” The court admonished Fink to 

refrain from making claims for which he had no evidence because 

it caused the record to be “so muddled.” 

On August 20, 2020, Fink claimed that documents he 

received in discovery15 showed the prosecution was trying to stop 

internal affairs from “charging Captain Ohannessian.” The court 

15 Fink was referring to a 2016 motion filed by the prosecutor 

asking the court to conduct an in-camera review of recorded jail 

calls. At the time, Fink was represented by counsel. The 

prosecutor told the court on August 20, 2020, that Fink would 

have received a copy of the motion in 2016 when it was filed. 

Fink acknowledged that he was represented by counsel when the 

motion was filed, but noted he did not find the motion in his 

former counsel’s file. The proof of service reflects that the 

prosecutor served the motion on Fink’s then-counsel. 
17

admonished Fink, “You have determined that they were trying to 

protect Ohannessian. I don’t hear [sic] that in that letter. I’m 

sorry. That’s not what it sounds like.” Later on during the 

hearing, Fink repeated the assertion that the prosecutor wrote a 

letter to internal affairs to stop them from seeking charges 

against Ohannessian.16 The court again admonished Fink, 

“You’re making statements that you don’t have any proof of. 

You’ve got to stop doing that.” The court told Fink he was 

creating a record that is “full of confusion.” The court added, 

“Stop making statements that you just make up in your own 

mind. Stop it. I’m ordering you to do that right now.” Later on 

during the hearing, the court told Fink that his case would be 

harmed in the eyes of the jury if he was constantly being 

admonished by the judge. The court added, “I understand that 

this is very meaningful to you. If you’re going to represent 

yourself, you’ve got to figure out how to do it without violating 

the rules of court.” 

16 The letter that Fink was referring to is a letter dated 

November 3, 2016, from the prosecutor to Ohannessian and to an 

SBSD sergeant. The prosecutor had attached the letter as an 

exhibit to the 2016 motion asking the court to conduct an incamera review of Fink’s recorded jail calls. In the letter, the 

prosecutor wrote that calls between a pro per defendant and his 

investigator “are protected by the attorney work product 

privilege. Therefore, such phone calls should not be listened to.” 

The prosecutor concluded by stating SBSD should not use any of 

the information received as a result of listening to the jail calls to 

conduct further investigation. 
18

f. September 10, 2020 proceedings

On September 10, 2020, during his examination of 

investigators about the seizure of his personal property when he 

was in custody in Idaho, Fink interjected by correcting the 

witnesses’ testimony and adding his own contrary facts about 

when he was booked into the jail. The court cautioned Fink that 

he could not testify while he was questioning a witness. 

Thereafter, while examining a witness about the monitoring of 

his jail calls, Fink again tried to interject his view of the facts. 

Fink also characterized the assistance Idaho investigators

provided to California authorities in a manner that did not reflect 

the testimony, which prompted the court to admonish Fink about 

misstating the testimony. 

Later, Fink again asked questions that assumed facts that 

had not been shown. Specifically, Fink assumed that an Idaho

investigator provided privileged information to a California 

prosecutor based on the fact that his jail calls were monitored 

and certain emails between the investigator and prosecutor had 

been redacted. The court cautioned Fink that just because 

documents had been redacted did not prove that the redactions 

contained his privileged information. However, throughout the 

hearing, Fink continued to refer to this evidence as containing his 

privileged information. 

During the same hearing, Fink claimed at length that he 

had not received all his requested discovery from the prosecutor. 

The prosecutor responded that they had produced all the 

discovery and that many of Fink’s discovery requests sought 

documents he had already received. The prosecutor added that, 

notwithstanding, the prosecution had many times offered 

additional discovery that had already been produced in order to 

move the case along and to assist Fink. Fink persisted in his 
19

claim that he was still missing discovery. The prosecutor 

reiterated that all requested discovery had been produced to Fink 

and the information he was seeking did not exist. After hearing 

the parties’ arguments, the court noted Fink was providing the 

court with “facts that didn’t exist.” The court stated it had 

already ruled that Fink had received all of the discovery he was 

owed and that it would not sign an order requiring the 

prosecution to turn over discovery that did not exist.

g. October 15, 2020 proceedings

On October 15, 2020, Fink filed a document titled “Material 

Defense Objections.” In this filing, Fink objected to the manner 

in which the court was conducting the evidentiary hearing. Fink 

made several allegations, including the court “intentionally 

placed the wrong burden upon Defendant, in violation of clearly 

defined law of the Supreme Court”; the court was eliciting 

“inadmissible testimony for the People, attempting to distort the 

record, and take advantage of an inexperienced pro-per”; the 

court “blocked” questions by Fink “under the guise of relevance”; 

the “court said [it] didn’t care what the United States Supreme 

Court or Court of Appeal said”; and the court said it “would 

intentionally disregard” precedent. Fink concluded his 

“Objections” by requesting that Ohannessian not remain on the 

prosecution team during the evidentiary hearing because “it is a 

conflict to have an accused felon to [sic] gather evidence at these 

hearings, and it violates due process.” 

At the evidentiary hearing on October 15, 2020, the court 

stated: “I want to address initially a motion that [Fink] filed this 

morning because it continues a pattern that I do not like. And 

that pattern . . . is that you have impugned my integrity on more 

than one occasion in your motions. I don’t like it. It’s 
20

inappropriate. If it continues—it’s like I would hold an attorney 

in contempt at some point if they continue to do it after we had a 

discussion. I will terminate your pro per status.” The court went 

on to explain the rationale for its prior evidentiary rulings: “The 

burden is initially on you to show that the material [in the jail 

calls] is privileged. If you do that, the burden then shifts to the 

People, to not necessarily justify, but show, if they can, that there 

is no damage, what remedy the court should impose. I haven’t 

looked at my ruling since I made it. And if I misstated myself, 

certainly I apologize. But don’t say that I’m doing it for improper 

motive, which is what you did again when you filed your motions 

today or your objections that you listed.” 

During the afternoon session, the court again discussed 

some of the allegations that Fink made in his “Objections” and 

reiterated its admonishment, “I’ll emphasize what I did this 

morning. One more filing impugning my integrity or questioning 

my honesty, no more pro per.” 

Later, Fink asked questions in which he stated that 

Ohannessian was being “criminally investigated.”17 The court 

corrected Fink, stating Ohannessian was not under criminal 

investigation, and again reminded Fink not to assume evidence

in his questions that lacked a factual basis. 

h. October 22, 2020 filing

On October 22, 2020, Fink filed a document titled “Second 

Written Material Defense Objections at Evidentiary Hearings.” 

Therein, Fink again complained of the manner in which the court 

was conducting the evidentiary hearing and claimed the court 

17 This was in reference to the administrative complaint that 

Fink had filed against Ohannessian. 
21

was attempting to help the prosecution. Under a section titled 

“Terminating Examination at Critical Point,” Fink wrote, “Twice, 

the court ordered the hearings stopped hours early, with no 

notice, in the middle of critical portion of the examination.” Fink 

continued: “On October 15, 2020, the court in all of its wisdom, 

had to have known Ohannessian was in deep trouble, and if it 

halted the hearing it could allow the People to coach him and give 

the court time to find a waiver exists on recorded calls that 

contain no waiver.” Fink further wrote: “At [the October 15, 

2020] hearing, a [Global Tel Link (GTL)

18] ‘person most 

knowledgeable’ testified the GTL recorded calls do not contain 

warning prompts. Undiscouraged, the court on its own motion, 

ordered Defendant’s witness to produce evidence if the warning 

prompts were operational during this period, with the only 

possible reason so it can speculate away Defendant’s Sixth 

Amendment rights . . . so that it can avoid charging Ohannessian 

with eight counts of [section] 636.”19

i. October 30, 2020 proceedings

On October 30, 2020, Fink filed a document titled 

“Defendant’s Motion to Disqualify Judge Fidler 

(CCP-170.1/Common Law).”20 In his motion, Fink made 

18 GTL is the private company that operated the inmate 

phone system at the San Bernardino County jail. 

19 Section 636 relates to the unlawful eavesdropping or 

recording of telephone calls.

20 Previously, on January 31, 2020, Fink filed a motion to 

disqualify Judge Fidler under Code of Civil Procedure 

section 170.1. In that motion, Fink made three allegations 
22

allegations similar to those he made in his October 15 and 

October 22 filings. 

During the evidentiary hearing on October 30, 2020, the 

court stated Fink had again impugned the court’s integrity with 

his October 22, 2020 filing. The court indicated its intent to 

revoke Fink’s pro per status. The court added, “It didn’t take 

seven days for you to accuse me of wrongdoing, trying to help the 

prosecution by terminating the hearing at 3:00 o’clock so that 

they could go—the prosecutor could go and coach Captain 

Ohannessian, which, of course, is pure speculation on your part 

as to what they would do.” The court explained it had recessed 

the last hearing early in order to attend to its responsibilities as 

the assigned wiretap judge for Los Angeles County. 

j. November 4, 2020 proceedings

On November 4, 2020, the court revoked Fink’s pro per 

status21 because he (1) continually disparaged the court’s 

integrity and accused the court of bias and misconduct; 

(2) misstated the facts and record, which complicated the 

hearings and wasted time; and (3) refused to follow orders. The 

court considered holding Fink in contempt as an alternative, but 

rejected it because Fink was already in custody. The court 

appointed Fink’s advisory counsel to represent him. 

against Judge Fidler that he titled: (1) “Rubber Stamp Friend of 

Police Claim”; (2) “Prejudicial Order in Excess of Jurisdiction”; 

and (3) “Impermissible Impugning Remarks.” Judge Fidler 

denied Fink’s previous motion to disqualify on February 5, 2020. 

21 Prior to revoking Fink’s pro per status, the court denied his 

October 30, 2020 motion to disqualify. 
23

2. Applicable law and standard of review

The Sixth and Fourteenth Amendments of the federal 

constitution give criminal defendants the right to selfrepresentation. (People v. Becerra (2016) 63 Cal.4th 511, 517-

518, citing Faretta, supra, 422 U.S. at pp. 807, 819.) However, 

that right is not without limit. (Indiana v. Edwards (2008) 

554 U.S. 164, 171 [128 S.Ct. 2379].) At times, the “‘government’s 

interest in ensuring the integrity and efficiency of the 

trial . . . outweighs the defendant’s interest in acting as his own 

lawyer.’” (People v. Williams (2013) 58 Cal.4th 197, 253.) For 

example, a prerequisite of self-representation is a willingness and 

ability “to abide by rules of procedure and courtroom protocol.” 

(McKaskle v. Wiggins (1984) 465 U.S. 168, 173 [104 S.Ct. 944].) 

To that end, the trial court may terminate self-representation if 

the defendant is disruptive. (See Faretta, at pp. 834-835, fn. 46 

[trial court “may terminate self-representation by a defendant 

who deliberately engages in serious and obstructionist 

misconduct”]; People v. Carson (2005) 35 Cal.4th 1, 10 (Carson)

[“[w]henever ‘deliberate dilatory or obstructive behavior’ 

threatens to subvert ‘the core concept of a trial’ [citation] or to 

compromise the court’s ability to conduct a fair trial [citation], 

the defendant’s Faretta rights are subject to forfeiture”]; accord, 

People v. Fitzpatrick (1998) 66 Cal.App.4th 86, 92 [the right of 

self-representation is not absolute and is not a license to abuse 

the dignity of the courtroom].)

A court is also justified in revoking a defendant’s pro per 

status when the defendant has “deliberately engage[d] in serious 

and obstructionist misconduct.” (Faretta, supra, 422 U.S. at 

p. 834, fn. 46; see also People v. Williams, supra, 58 Cal.4th at 

p. 253 [“‘The right of self-representation is not a license to abuse 
24

the dignity of the courtroom. Neither is it a license not to comply 

with relevant rules of procedural and substantive law.’

[Citations.] ‘Thus, a trial court must undertake the task of 

deciding whether a defendant is and will remain so disruptive, 

obstreperous, disobedient, disrespectful or obstructionist in his or 

her actions or words as to preclude the exercise of the right to 

self-representation.’”].) “This rule is obviously critical to the 

viable functioning of the courtroom. A constantly disruptive 

defendant who represents himself . . . would have the capacity to 

bring his trial to a standstill.” (People v. Welch (1999) 20 Cal.4th 

701, 734.)

In deciding whether to revoke a defendant’s pro per status, 

the court must consider the nature of the misconduct and its 

impact on the trial proceedings—whether it “threatens to subvert 

‘the core concept of a trial’” or “to compromise the court’s ability 

to conduct a fair trial.” (Carson, supra, 35 Cal.4th at p. 10.) 

Other factors the court should consider include: “(1) ‘the 

availability and suitability of alternative sanctions,’ (2) ‘whether 

the defendant has been warned that particular misconduct will 

result in termination of in propria persona status,’ and 

(3) ‘whether the defendant has “intentionally sought to disrupt 

and delay his trial.”’” (People v. Ng (2022) 13 Cal.5th 448, 494-

495.) No one consideration is dispositive; rather, the totality of 

circumstances should inform the court’s exercise of its discretion. 

(Carson, at p. 11.) “Misconduct that is more removed from the 

trial proceedings, more subject to rectification or correction, or 

otherwise less likely to affect the fairness of the trial may not 

justify complete withdrawal of the defendant’s right of selfrepresentation.” (Id. at p. 10.)

We review the trial court’s decision to terminate a 

defendant’s self-representation for an abuse of discretion. 
25

(Carson, supra, 35 Cal.4th at p. 12.) “The trial court possesses 

much discretion when it comes to terminating a defendant’s right 

to self-representation,” and we will not overturn that decision “‘in 

the absence of a strong showing of clear abuse.’” (People v. Welch, 

supra, 20 Cal.4th at p. 735.) We accord great deference to the 

trial court’s “assessment of the defendant’s motives and sincerity 

as well as the nature and context of his misconduct and its 

impact on the integrity of the trial.” (Carson, at p. 12.) This is 

because “the extent of a defendant’s disruptive behavior may not 

be fully evident from the cold record,” and the trial judge “is in 

the best position to judge defendant’s demeanor.” (Welch, at 

p. 735.) As the California Supreme Court has admonished: “We 

have an obligation to interpret Faretta in a reasonable fashion to 

vindicate the legitimate rights of defendants while at the same 

time avoiding turning the trial into a charade in which a 

defendant can continually manipulate the proceedings in the 

hope of eventually injecting reversible error into the case no

matter how the court rules.” (People v. Clark (1992) 3 Cal.4th 

41, 116, abrogated on other grounds in People v. Edwards (2013) 

57 Cal.4th 658, 704-705.)

3. The trial court did not abuse its discretion in 

revoking Fink’s pro per status because Fink 

repeatedly disparaged the court, made 

misrepresentations, and disobeyed court orders

The trial court acted within the scope of its discretion in 

revoking Fink’s pro per status. Fink continually impugned the 

integrity of the court, fabricated or misrepresented facts before 

the court and during witness testimony, and disobeyed court 

rules, rulings, and orders. Notably, before revoking his pro per 

status, the trial court warned Fink that it would do so if he 
26

continued to disparage the court and ignored the court’s 

instructions. When Fink disregarded that warning, the court 

revoked his pro per status.

Fink argues the trial court abused its discretion in revoking 

his pro per status for four reasons. First, Fink contends the trial 

court revoked his status solely because he sought to recuse and 

criticized the judge. Fink maintains his conduct did not threaten 

the fairness of the proceedings. Second, Fink argues the court 

failed to consider less drastic alternatives. Third, Fink asserts 

revocation of his right to self-representation was not warranted 

because his conduct was less disruptive than in other cases. 

Fourth, he asserts the court did not make an adequate record of

the disruption. 

Fink’s arguments are unconvincing.

First, the court revoked Fink’s pro per status in part 

because of his disparagement of the court. Fink repeatedly 

impugned the integrity, honesty, and character of the trial judge. 

For instance, as described, at the July 17, 2020 hearing, Fink 

asserted without any factual basis that the judge deceived him 

into agreeing to a 120-day general time waiver. In his 

October 15, 2020 filing, Fink accused the court of showing bias 

against him. He argued that the court had improperly shifted 

the burden on his motion to dismiss to him, and that the court’s 

doing so was motivated by its personal bias against him. The 

court rejected Fink’s characterization of its motives as without 

any basis in the record, and explained why the ruling had 

appropriately assigned the burden to him. Seven days later, in 

his October 22, 2020 filing, Fink again claimed, without any 

support, the court was biased against him as shown by its ending 

a hearing early to allow the prosecution time to “coach” a witness. 

In rejecting that assertion as unfounded, the court observed that 
27

Fink did not cite any evidence to support his claim of bias. The 

court explained it had scheduled wiretap proceedings in other 

cases that afternoon that required it to end the hearing in Fink’s 

case early. 

Moreover, Fink’s conduct went beyond mere criticism of the 

judge. Fink prolonged hearings because he refused to follow the 

court’s instructions about how to examine witnesses. As 

described, Fink’s questioning of witnesses and presentation of 

evidence were also punctuated by speculation, 

misrepresentations of the evidence, and conclusory legal 

arguments. Several times, the court admonished Fink not to 

speculate and make misrepresentations. As the court noted, his 

questions and method of examining witnesses confused the 

record. His conduct revealed not merely a lack of formal legal 

training that might be expected of a pro per defendant, but also 

an unwillingness to comply with the rules of procedure and law, 

notwithstanding the trial court’s repeated directions and 

warnings.22

Second, the trial court considered alternatives to revoking 

Fink’s pro per status. Namely, it expressly considered and 

rejected holding Fink in contempt. The court also gave Fink clear 

directions on how to conduct himself, and told Fink that the court 

understood how “meaningful” self-representation was to him and 

that being lectured by the court would hurt his case in front of 

the jury. The court reiterated that if Fink were to continue 

22 For example, earlier in the case, after filing one 

unsuccessful section 995 motion, Fink attempted to file 

additional section 995 motions, even after the court specifically 

cautioned Fink that he could not split his arguments into 

separate motions. 
28

representing himself, he had to do it without violating the rules 

of the court. 

Fink suggests the court should have required his standby 

counsel to review his written submissions before filing. But that 

would not have solved the problem because Fink’s obstreperous 

conduct was not limited to his written submissions. He also 

disrupted proceedings while questioning witnesses in the 

presence of advisory counsel. Fink’s conduct persisted over 

several hearings, despite repeated admonitions by the court. The 

court was not required to allow Fink to disrupt pretrial 

proceedings just to see if he would finally stop at trial. (See 

Faretta, supra, 422 U.S. at pp. 834-835, fn. 46 [right of selfrepresentation “is not a license to abuse the dignity of the 

courtroom” or “a license not to comply with relevant rules of 

procedural and substantive law”].)

Third, the cases Fink cites do not help him. Carson, on 

which Fink relies, is distinguishable. There, the trial court 

revoked the defendant’s pro per status after he had gained access 

to discovery he was not entitled to. (Carson, supra, 35 Cal.4th at 

pp. 12-13.) The California Supreme Court affirmed the reversal 

of Carson’s conviction and held that out-of-court conduct could be 

the basis for terminating pro per status. (Id. at pp. 9-12, 14.) 

The court remanded for a hearing on the necessity of terminating 

Carson’s self-representation because the record lacked “a specific 

assessment of both the nature and the impact of defendant’s 

misconduct to calibrate an appropriate response.” (Id. at pp. 12-

13.) In contrast, the court in this case did not revoke Fink’s 

pro per status based on out-of-court conduct. The record here is 

fully developed, and there is thus no need for an additional

hearing to determine the basis of the court’s decision.
29

Equally unavailing is Fink’s attempt to minimize the 

disruptive nature of his conduct by comparing it to more serious 

conduct in other cases. (See, e.g., People v. Fitzpatrick, supra,

66 Cal.App.4th at p. 93 [pro per defendant feigned mental illness 

for four months, delayed his trial by an additional seven months 

by escaping from custody, and told the court he would need over a 

year to get ready for trial].) Those cases establish courts have 

revoked defendants’ pro per status in other cases involving more 

serious misconduct. But they do not support that Fink’s conduct 

was not sufficiently disruptive here. As the Supreme Court noted 

in Carson, supra, 35 Cal.4th at page 10, “[e]ach case must be 

evaluated in its own context, on its own facts.” (See also People v. 

Clark, supra, 3 Cal.4th at p. 116 [“A finding of no error in one 

situation is not tantamount to the finding of error in another”].)

Finally, contrary to Fink’s claim, the court made an 

adequate record of his continued misconduct. The court warned

Fink that he would lose his right to represent himself if he did 

not conform his conduct. However, Fink refused to take the 

multiple opportunities the court provided to abide by its rules 

and orders. (Cf. People v. Becerra, supra, 63 Cal.4th at pp. 514-

516, 518 [reversing revocation of pro per status when the trial 

court without warning revoked the defendant’s pro per rights].) 

It was not unreasonable for the court to therefore conclude that 

Fink’s conduct would continue at trial and threaten the fairness 

of the proceedings. Considering the totality of the circumstances, 

the court did not abuse its discretion in terminating Fink’s selfrepresentation.
30

B. The Trial Court Did Not Abuse Its Discretion When It 

Denied Fink’s Motion To Dismiss for a Violation of 

His Speedy Trial Rights

1. Factual background

At multiple hearings between September 2018 and March 

2020, Fink waived time and sought continuances of the 

proceedings. 

In March 2020, Governor Gavin Newsom declared a state of 

emergency in California, and the President declared a national 

emergency due to the COVID-19 pandemic. The Chief Justice of 

California issued a statewide emergency order that suspended all 

jury trials and continued them for 60 days, and extended the 

deadline under section 1382 for holding a criminal trial within 

60 days of the defendant’s arraignment by 60 days. (HernandezValenzuela v. Superior Court (2022) 75 Cal.App.5th 1108, 1114.)

The Chief Justice later extended the section 1382 deadline by 

another 30 days, thus bringing the total extension of time to hold 

a criminal trial during the pandemic to 90 days. (Elias v. 

Superior Court (2022) 78 Cal.App.5th 926, 931, 941-942.) The 

Chief Justice also authorized superior courts to adopt local rules 

to address the impact of the pandemic. (Ibid.) Thereafter, the 

LASC presiding judge issued a series of emergency orders 

through October 2021, extending the time for holding criminal 

trials.23

23 See LASC General Order No. 2020-GEN-019-00 (July 10, 

2020); LASC General Order No. 2020-GEN-021-00 (Sept. 10, 

2020); LASC General Order No. 2020-GEN-023-00 (Oct. 9, 2020); 

LASC General Order No. 2020-GEN-026-00 (Dec. 2, 2020); 

LASC General Order No. 2020-GEN-027-00 (Dec. 31, 2020); 
31

In the interim, in April 2020, Fink filed a notice to 

withdraw a 120-day time waiver entered on March 13, 2020, the 

day before the courts closed because of the pandemic. In 

response to an LASC emergency order, in June 2020, the trial 

court vacated the pretrial date and continued the matter to 

July 17, 2020. On July 7, 2020, Fink filed a motion to dismiss,

arguing the court was using the pandemic as an excuse to keep 

him in jail and delay his trial. On July 17, 2020, the court 

granted Fink’s request to withdraw his general time waiver, but 

denied his motion to dismiss. 

Subsequently, Fink refused to waive time at hearings in 

August and October 2020. In November 2020, after Fink’s 

pro per status was revoked, his counsel, over Fink’s objection,

asked for and was granted a continuance until January 2021. In

February 2021, at a hearing in which Fink sought a modification 

of his electronic monitoring terms to allow him to visit his family, 

Fink entered a time waiver, and the court set a status conference 

in March 2021, and a trial in April 2021. 

LASC General Order No. 2021-GEN-010-00 (Jan. 28, 2021); 

LASC General Order No. 2021-GEN-017-00 (Feb. 25, 2021); 

LASC General Order No. 2021-GEN-018-00 (Mar. 25, 2021); 

LASC General Order No. 2021-GEN-019-00 (April 22, 2021); 

LASC General Order No. 2021-GEN-021-00 (May 20, 2021); 

LASC General Order No. 2021-GEN-022-00 (June 17, 2021); 

LASC General Order No. 2021-GEN-027-00 (July 19, 2021); 

LASC Amended General Order No. 2021-GEN-027-02 (July 29, 

2021); LASC General Order No. 2021-GEN-028-00 (Aug. 13, 

2021); LASC Amended General Order No. 2021-GEN-028-01 

(Aug. 26, 2021); LASC General Order No. 2021-GEN-030-00 

(Sept. 10, 2021); LASC Amended General Order No. 2021-GEN030-01 (Sept. 24, 2021); LASC General Order No. 2021-GEN-034-

00 (Oct. 7, 2021).
32

Based on new LASC emergency orders, the trial court 

continued the case in April, June, July, August, and September 

2021. Fink repeatedly objected that county courthouses had 

reopened and that some cases had gone to trial. Fink complained 

the court appeared to be picking and choosing what cases to bring

to trial and was unreasonably delaying his own. In response to 

Fink’s objections, the court acknowledged that some cases had 

gone to trial, but also repeatedly explained that Fink’s case was 

delayed because of the pandemic. The court stated it was

challenging to find enough jurors to hold trials and provide safe 

places for the jurors to deliberate because of ongoing health 

concerns that required social distancing. 

Fink’s case was set for a trial readiness conference on 

October 15, 2021. The extension of the section 1382 time period 

in the latest (and final) LASC emergency order was set to expire 

on October 22, 2021, and the last day for Fink’s trial was set for 

October 25, 2021. On October 22, 2021, Fink filed another 

motion to dismiss. Later that day, at a hearing on the motion, 

the trial court rejected Fink’s claim that the emergency orders 

were being used as an excuse to delay his trial and found that 

genuine public health dangers caused by the pandemic prevented 

the court from holding the trial. The court denied Fink’s motion 

to dismiss. 

On October 25, 2021, the trial court ordered a panel of 

jurors. On October 27, 2021, Fink waived his right to a jury trial 

and proceeded by way of a bench trial. The bench trial began on 

October 28, 2021. 

On the first day of trial, the court asked defense counsel 

about his delay in filing a motion in limine, and defense counsel 

replied that, given the pandemic, he believed another emergency 

order would be issued. Later that day, defense counsel informed 
33

the court Fink was “willing to waive time a few days if the Court 

wants to look at the transcripts to make a ruling regarding in 

limine motions.” 

2. Applicable law and standard of review

A defendant has the right to a speedy trial under both the 

federal and California Constitutions. (U.S. Const., 6th Amend.; 

Cal. Const., art. I, § 15.) Although the speedy trial guarantees 

are similar, they are independent and operate somewhat 

differently. (People v. Martinez (2000) 22 Cal.4th 750, 765 

(Martinez).)

The Sixth Amendment to the federal Constitution provides 

that, “[i]n all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial.” (U.S. Const., 6th Amend.) 

In Barker v. Wingo (1972) 407 U.S. 514 [92 S.Ct. 2182], the 

United States Supreme Court articulated a balancing test to 

determine whether a delay in prosecution amounts to a violation 

of this right. (Id. at p. 530.) Under that test, a court must 

consider four factors: “the length of the delay, the reason for the 

delay, the defendant’s assertion of the right, and prejudice to the 

defense caused by the delay.” (Martinez, supra, 22 Cal.4th at 

p. 755.)

The California Constitution likewise guarantees a 

“defendant in a criminal cause . . . the right to a speedy public 

trial . . . .” (Cal. Const., art. I, § 15.) The Legislature 

implemented this right by enacting sections 1381 to 1389.8. 

(Martinez, supra, 22 Cal.4th at p. 766.) Section 1382, 

subdivision (a), provides that, “unless good cause to the contrary 

is shown,” a court “shall order the action to be dismissed” when a 

defendant in a felony case “is not brought to trial within 60 days 
34

of the defendant’s arraignment on an indictment or information, 

. . . or, in case the cause is to be tried again following a mistrial, 

. . . within 60 days after the mistrial has been declared . . . .” 

(§ 1382, subd. (a)(2); see §§ 1049.5, 1050, subd. (e).)

“[A] broad variety of unforeseen events may establish good 

cause under section 1382.” (People v. Hajjaj (2010) 50 Cal.4th 

1184, 1198.) For instance, in In re Application of Venable (1927) 

86 Cal.App. 585, there was an epidemic of infantile paralysis in 

the town that prohibited calling juries. (Id. at p. 587.) The court 

concluded the quarantine to prevent the spread of the infectious 

disease was good cause for the delay of trial and there was no 

unreasonable delay in bringing the case to trial after the 

epidemic ended. (Ibid.) In People v. Tucker (2011) 

196 Cal.App.4th 1313, the defendant could not appear for trial as 

he was under quarantine because another inmate had contracted 

the H1N1 flu virus. (Id. at p. 1315.) The court concluded the

medical necessity of the defendant’s quarantine constituted good 

cause for the continuance of his trial. (Id. at pp. 1317-1318.) 

And, particularly relevant here, in Stanley v. Superior Court

(2020) 50 Cal.App.5th 164, the court concluded the COVID-19 

pandemic was “of such severity” as to justify a 90-day 

continuance of the defendant’s trial. (Id. at p. 166.) The court 

stated that courthouses were high risk because they involved 

gatherings of judges, court staff, litigants, attorneys, witnesses, 

defendants, law enforcement, and juries in excess of what was

allowed under executive and health orders. (Id. at pp. 169-170 

[“[h]ealth quarantines to prevent the spread of infectious diseases 

have long been recognized as good cause for continuing a trial 

date”].)

We review the denial of a motion to dismiss for an abuse of 

discretion. (People v. Hajjaj, supra, 50 Cal.4th at p. 1197.) That 
35

deferential standard requires us to affirm the ruling unless it is 

outside the boundaries of what the law allows or is so irrational 

that no reasonable person could agree with it. (People v. Johnson

(2022) 12 Cal.5th 544, 605.)

3. The trial court did not abuse its discretion when 

it denied Fink’s motion to dismiss for reasons 

related to the COVID-19 pandemic

Fink contends the trial court abused its discretion when it 

denied his motion to dismiss the case for violating his right to a 

speedy trial. We disagree. In times of emergency, including 

pandemics, the presiding judge of a superior court may request, 

and the Chairperson of the Judicial Council may authorize,

24

extensions to the time period under section 1382 for holding a 

criminal trial. (Gov. Code, § 68115, subd. (a)(10).) After the 

onset of the COVID-19 pandemic, the Chief Justice of California 

and the LASC presiding judge acted on this authority by issuing 

emergency orders that progressively extended the deadline under 

section 1382 through October 22, 2021. (See ante, fn. 23.)

The trial court denied Fink’s motion to dismiss after it 

found the circumstances described in these emergency orders

constituted good cause for the delay. Several times during 

pretrial hearings, the court noted the pandemic required the 

court to scale back its services to comply with statewide orders 

designed to protect the public. Even though LASC courthouses 

reopened in summer 2021, the courts gave priority for in-person 

hearings to proceedings where an individual could be entitled to 

24 The Chief Justice serves as the Chairperson of the Judicial 

Council. (Cal. Const., art. VI, § 6, subd. (a); Cal. Rules of Court, 

rule 10.2(b)(1)(A).)
36

immediate release from custody after a short hearing, such as 

arraignments and sentencing hearings that would result in a 

defendant’s release and bail motions challenging pretrial 

confinement. Moreover, even after trials could resume, the courts

struggled to seat juries and find safe spaces to conduct 

proceedings. The court described this difficulty to the parties in 

August 2021, explaining “the biggest problem we have with these 

continuances is picking a jury and then having a place for the 

jury to deliberate because we’ve run out of courtrooms.” The 

court noted it was forced to switch to a larger courtroom for a 

different trial because it “couldn’t legally” conduct the trial in the 

normal courtroom because of social distancing requirements. 

Notably, the continuances here were also not attributable 

to the fault or neglect of the state, or the conduct of the 

prosecution. (See People v. Johnson (1980) 26 Cal.3d 557, 572 

[considering whether court congestion excused compliance with 

the speedy trial statute time limits, and acknowledging the 

critical inquiry is whether the backlog is attributable to chronic 

conditions (which do not demonstrate good cause to delay a trial)

as opposed to exceptional circumstances (which do)]; accord, 

People v. Engram (2010) 50 Cal.4th 1131, 1163.) Operating 

courthouses at reduced capacity was a reasonable measure to 

protect public health during the COVID-19 pandemic, a unique 

event beyond the court’s control. (See also Hernandez-Valenzuela

v. Superior Court, supra, 75 Cal.App.5th at p. 1130 [backlog of 

jury trials caused by earlier pandemic-related court closure 

constituted good cause for continuance even where the defendant 

showed there were courtrooms available for trials].)

Fink’s citations to Bullock v. Superior Court (2020) 

51 Cal.App.5th 134, 141, 142 and Lacayo v. Superior Court (2020) 

56 Cal.App.5th 396, 399-400 do not change our view. Those cases 
37

considered the application of the statewide COVID-19 emergency 

orders extending certain court deadlines to the mandatory 

statutory deadlines for preliminary hearings under section 859b.

(Lacayo, at pp. 399-400; Bullock, at p. 141.) For example, in 

Bullock, the court held that the time to hold a preliminary 

hearing during the pandemic may be extended where a 

“particularized showing” of good cause is made. (Bullock, at 

p. 140.) But the Bullock court recognized that “preliminary 

hearings and trials involve different considerations” and, 

therefore, “circumstances in a pandemic that constitute good 

cause to continue a trial may not constitute good cause to 

continue a preliminary hearing for a defendant in custody.” (Id.

at p. 156.) Fink’s case does not involve preliminary hearing 

deadlines. Cases that did, like Bullock and Lacayo, are therefore 

inapposite.

In sum, the court-imposed continuances show they were 

reasonably based on the COVID-19 emergency, subsequent 

emergency orders of the Chief Justice and the Presiding Judge of 

the LASC, and the trial court’s findings of good cause based on 

the inability to safely conduct a trial. Because these are valid 

reasons for the delay in this case, we conclude Fink’s speedy trial 

claims lack merit and the trial court did not abuse its discretion 

when it denied Fink’s motion to dismiss. (See Elias v. Superior 

Court, supra, 78 Cal.App.5th at pp. 941-943 [no violation of state 

or federal speedy trial rights where delay in holding trial caused 

by COVID-19 pandemic and no findings of prosecutorial 

negligence in causing delay].)
38

C. The Trial Court Did Not Abuse Its Discretion in

Ruling There Were No Relevant Records To Disclose

in Response to Fink’s Pitchess Motion

1. Factual background

In December 2018, Fink filed a motion under Pitchess, 

supra, 11 Cal.3d 531, requesting discovery of Ohannessian’s 

personnel file. Fink requested records related to illegal, 

unconstitutional, unethical, unprofessional, or improper searches 

and seizures; dishonesty, falsifying or altering reports, falsifying 

or altering evidence, or potentially impeaching misconduct; 

evidence of moral turpitude or morally lax character; and 

evidence of coercive conduct. Although it initially denied the 

motion, after oral argument, the trial court reversed itself and 

granted the motion. 

On September 10, 2020, San Bernardino County Counsel 

and the SBSD custodian of records appeared in court with 

Ohannessian’s personnel file. The trial court conducted an incamera hearing, and the custodian of records testified and 

provided records for the court’s review. The trial court described 

the documents on the record. Based on the testimony and 

materials it reviewed, the court ruled there were no discoverable 

records. It ordered the in-camera hearing transcript sealed. 

2. Applicable law and standard of review

Under Pitchess, a defendant may bring a motion for 

disclosure of certain information in the personnel files of police 

officers by showing good cause for discovery and how it would 

support a defense. (Evid. Code, §§ 1043-1045; Pen. Code, 

§§ 832.7, 832.8; Warrick v. Superior Court (2005) 35 Cal.4th 1011, 

1018-1019.) If the court finds good cause, the court must hold an 
39

in-camera hearing, during which the custodian of records brings 

“all documents ‘potentially relevant’ to the defendant’s motion.” 

(People v. Mooc (2001) 26 Cal.4th 1216, 1226.) “Subject to 

statutory exceptions and limitations . . . , the trial court should 

then disclose to the defendant ‘such information [that] is relevant 

to the subject matter involved in the pending litigation.’” (Ibid.) 

The court must make a record that will permit future appellate 

review. (Id. at pp. 1229-1230.) The court may preserve the 

record by copying the documents and placing them in a 

confidential file, preparing a sealed list of the documents it 

reviewed, or stating on the record what documents it examined. 

(Id. at p. 1229.) “A trial court’s decision on the discoverability of 

material in police personnel files is reviewable under an abuse of 

discretion standard.” (People v. Jackson (1996) 13 Cal.4th 1164, 

1220-1221.)

3. An independent review of the Pitchess record 

demonstrates the trial court did not abuse its 

discretion

Fink requests we independently review the record of the 

trial court’s in-camera Pitchess proceedings. Specifically, he asks 

this court to determine (1) whether the trial court prepared a 

sufficient record, and (2) whether the trial court abused its 

discretion in finding there was nothing relevant to disclose. Fink 

also urges us to consider the Legislature’s recent amendments to 

section 832.7 that provide broader public access to police 

personnel files based on a clarification of the term “dishonesty.”

(§ 832.7, subd. (b)(1)(C), as amended by Stats. 2018, ch. 988, § 2, 

eff. Jan. 1, 2019 (Sen. Bill No. 1421); Sen. Rules Com., Off. of Sen. 

Floor Analyses, Analysis of Sen. Bill No. 1421 (2017-2018 

Reg. Sess.) Aug. 31, 2018, p. 2 [referring, in the fifth clause of the 
40

summary of Assembly Amendments, to “the dishonesty of an 

officer that would trigger release of records is related directly to 

the reporting, investigation, prosecution, including sustained 

findings of perjury, false statements, filing false reports, 

destruction, falsifying, or concealing evidence”].) The People do 

not oppose Fink’s requests. 

We have reviewed the confidential reporter’s transcript of 

the September 10, 2020 in-camera hearing. The custodian of 

records represented he did a thorough and complete search of all 

places where records might exist, and the trial court described

what it reviewed on the record. Having independently reviewed 

the sealed transcript of the Pitchess proceeding, we conclude the

trial court followed proper Pitchess procedures and did not 

erroneously withhold any information. (See People v. Fuiava

(2012) 53 Cal.4th 622, 646-648.) Even considering the recent 

amendments to the Pitchess review process, the trial court did 

not abuse its discretion in finding there were no complaints,

investigations, or anything else that required disclosure.

D. Substantial Evidence Supports Fink’s Convictions of 

Theft by False Pretenses

Fink argues there was insufficient evidence to support 16 of 

his convictions for theft by false pretenses under section 532. 

Specifically, he contends this court must reverse nine convictions 

(counts 2, 9, 22, 30, 42, 43, 46, 47, and 56) because the evidence 

at trial failed to establish the element that he acquired money 

from the victims. In addition, he complains that seven 

convictions (counts 20, 21, 41, 45, 47, 50, and 55) cannot stand 

because the prosecution failed to present evidence of a false 

writing as section 532 requires. We address these challenges in 

turn.
41

1. Standard of review

In reviewing a claim for sufficiency of the evidence, we 

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. (People v. Flinner (2020) 10 Cal.5th 686, 748.) We review 

the entire record to determine whether it discloses sufficient 

evidence—that is, evidence that is reasonable, credible, and of 

solid value—supporting the decision, not whether the evidence 

proves guilt beyond a reasonable doubt. (Ibid.)

This standard of review does not permit us to reweigh the 

evidence or reevaluate the credibility of witnesses. (See People v. 

Stewart (2000) 77 Cal.App.4th 785, 790.) Instead, we presume 

the existence of every fact the jury reasonably could have deduced 

from the evidence in support of the judgment. (People v. 

Zamudio (2008) 43 Cal.4th 327, 357.) We assume the jury

rejected evidence that does not support the judgment. (People v. 

Ryan (1999) 76 Cal.App.4th 1304, 1316.) We will not reverse 

simply because the circumstances of a case might reasonably 

support a finding contrary to the jury’s. (People v. Covarrubias

(2016) 1 Cal.5th 838, 890; accord, People v. Houston (2012) 

54 Cal.4th 1186, 1215.) Consequently, “[a] reversal for 

insufficient evidence ‘is unwarranted unless it appears “that 

upon no hypothesis whatever is there sufficient substantial 

evidence to support”’ the jury’s verdict.” (Zamudio, at p. 357.)
42

2. Substantial evidence supports Fink’s conviction 

on counts 2, 9, 22, 30, 42, 43, 46, 47, and 56

a. Factual background

The evidence relevant to the nine convictions where Fink 

asserts he never received the victim’s funds is as follows: 

(1) Arencibia v. Ralphs (count 2): The Los Angeles 

County Sheriff’s Department (LASD), acting on a writ of 

execution submitted by USJRU, executed a till tap at Ralphs and 

levied $4,156.07 in cash. However, Ralphs counsel testified that, 

upon receiving notice of the till tap, he contacted the LASD and 

put a hold on the money. Ultimately, USJRU did not receive 

money from this writ. 

(2) Atkins v. Swift Transportation (count 9): The Kings 

County Sheriff’s Department (KCSD), acting on a writ of 

execution, executed a bank levy on behalf of USJRU at 

Wells Fargo Bank and Citibank, and received checks for

$8,740.29 and $6,740.29, respectively. An attorney for the 

judgment debtor, Swift Transportation, then contacted the 

KCSD. Fink (acting as David Anderson) told the KCSD that the 

writ should not have been issued because the judgment was

satisfied in 2004. Swift Transportation received all the money

back. 

(3) Felder v. Canon USA (count 22): The parties 

stipulated that John Fernandez of the LASD would testify that,

even though the LASD received a letter from David Anderson 

instructing it to serve a bank levy on Bank of America under a 

writ of execution, the LASD did not seize any money on the writ. 

However, evidence from USJRU’s accounts showed Canon USA

sent a check for $10,182.19 directly to USJRU, and David 

Anderson endorsed the check. 
43

(4) Barnes v. JCPenney (count 30): The San Joaquin 

County Sheriff’s Office executed a writ of execution and collected 

$2,219.24 from JCPenney based on an alleged assignment of a 

judgment to USJRU. However, JCPenney had already paid the

judgment to the plaintiff. A loss prevention officer of JCPenney 

testified that, when she received notice of the levy, she 

intervened. The funds were returned to JCPenney.

(5) Gore v. Toyota (count 42): The LASD served a bank 

levy in reliance on a writ of execution from USJRU. The LASD 

received a check for $2,544.90 from Citibank to satisfy the levy. 

However, Toyota had already paid the judgment to the plaintiff,

and the LASD learned that the judgment had not been assigned 

to USJRU. Los Angeles County issued a check to Citibank to 

refund the levied money. No money was sent to USJRU. 

(6) Hickel v. United Valet (count 43): The Amador 

County Sheriff’s Office received a letter from USJRU about a writ 

of execution for a levy on Wells Fargo Bank. The sheriff’s office

executed the writ, received a check from Wells Fargo, and

deposited the check into a civil trust fund until it could be 

transferred to the person who sent the writ. However, the 

sheriff’s office received information that caused it to hold the 

check. Ultimately, the sheriff’s office did not send the money to 

USJRU. The money was returned to the civil trust fund. 

(7) Diberardino v. GMC (count 46): The LASD, acting on 

the writ it had received from USJRU, executed a levy and 

received $10,293.51 from Citibank. Subsequently, the LASD

received a letter from Fink asking it to return the funds to the 

judgment debtor. The parties stipulated that no funds were sent 

to Fink. 

(8) Lough v. Petco (count 47): The Glenn County 

Sheriff’s Office received a letter of instruction from USJRU to 
44

levy U.S. Bank for the small claims case of Elizabeth Lough v.

Petco. The sheriff’s office executed the bank levy. After the 

county got the money, it discovered the claim had already been 

paid. The county did not transfer the funds to Fink. 

(9) Lozier & Beesley v. Sears (count 56): The Nevada 

County Sheriff’s Office received writs of execution and letters of 

instruction from USJRU. The sheriff’s office served a bank levy 

and collected $4,884.12 from Sears. The sheriff’s office held the 

seized funds in its trust account and ultimately returned the 

money to Sears. 

During closing argument, the prosecutor acknowledged

that, for these nine counts of theft by false pretenses, Fink never 

received the funds that were collected on his behalf from the 

victims. Without that showing, the prosecutor conceded the court 

should treat the charge as the lesser included offense of

attempted theft by false pretenses.

25

When it announced the verdicts, the trial court stated it 

disagreed with the People’s argument that these counts should be 

considered only attempted offenses. Instead, the court pointed to 

People v. Jones (1950) 36 Cal.2d 373 (Jones) and People v. Cheeley

(1951) 106 Cal.App.2d 748 (Cheeley), explaining they declared

that one is guilty of theft by false pretenses whenever money is

delivered to another for the thief’s benefit. Such was the case 

here, the court continued, noting the evidence showed money was 

delivered to the county on Fink’s instructions for each of these 

counts. 

25 The prosecutor did not concede that the charge in Felder

(count 22) should be considered the lesser included offense of 

attempted theft by false pretenses. 
45

b. Substantial evidence supports Fink’s 

convictions where he personally did not 

receive the victim’s funds

Fink urges us to reverse his convictions on the nine counts 

under section 532 because he never received funds from the 

victims, which he claims the crime requires. The People 

disagree. They assert Jones and Cheeley state there is sufficient 

evidence of theft by false pretenses when the true owner’s 

property is delivered to the defendant or another for the 

defendant’s benefit. The People have the better argument.26

26 Fink argues the People should be judicially estopped from 

asserting sufficient evidence supported the convictions because 

the prosecutor conceded the evidence only proved attempted theft 

by false pretenses. We disagree. The judicial estoppel doctrine 

applies when “‘“‘“(1) the same party has taken two positions; 

(2) the positions were taken in judicial or quasi-judicial 

administrative proceedings; (3) the party was successful in 

asserting the first position (i.e., the tribunal adopted the position 

or accepted it as true); (4) the two positions are totally 

inconsistent; and (5) the first position was not taken as a result of 

ignorance, fraud, or mistake.”’”’” (People v. Castillo (2010) 

49 Cal.4th 145, 155.) The elements of judicial estoppel are not 

met here because the prosecution was not “successful in asserting 

the first position.” (Ibid.) The trial court rejected the People’s

argument that the evidence only established attempted theft by 

false pretenses and determined instead that the charged crimes 

were in fact completed.
46

1) Fink did not need to personally 

receive the victim’s funds

Case law supports the trial court’s determination that Fink 

did not need to personally receive a victim’s money in order to be 

convicted of theft by false pretenses.

In Jones, the defendant induced the victims to pay money 

to a partnership through fraudulent representations and then 

used that money to pay the partnership’s debts. (Jones, supra, 

36 Cal.2d at pp. 381-382.) The California Supreme Court held 

theft by false pretenses did not require the defendant to obtain

the money for himself, and that it was sufficient if the money was 

“‘delivered to another, either for the benefit of that other or for 

[defendant’s] benefit.’” (Ibid.)

A year later, the court in Cheeley, supra, 106 Cal.App.2d 

748, reached the same conclusion: “Appellant contends that she 

cannot be guilty of theft by reason of the fact that she did not 

herself gain possession of the money. The authority cited in 

support of such contention is not the law. One is guilty of theft, if 

as a result of his false pretenses, money or property of value is 

delivered to another person for the benefit of anyone other than 

the rightful owner.” (Id. at pp. 752-753; see also People v. Ashley

(1954) 42 Cal.2d 246, 259 [money acquired was used for expenses 

of corporation]; People v. Schmidt (1956) 147 Cal.App.2d 222, 228 

[check was made payable to corporation; it was not necessary to 

show that defendant actually took full amount in question, or 

that he benefited personally].)

After Jones and Cheeley were decided, section 484 

consolidated various theft offenses, defining them as the unlawful 

taking of another’s property. (§ 484; People v. Creath (1995) 

31 Cal.App.4th 312, 318.) The crime of theft includes larceny, 
47

embezzlement, larceny by trick, and theft by false pretenses, 

among other offenses. (Creath, at p. 318; CALJIC No. 14.00 

(7th ed. 2005).)

Notwithstanding the consolidation of theft crimes under

section 484, neither Jones nor Cheeley has been overruled, and

they continue to reflect the law. (See People v. Traster (2003) 

111 Cal.App.4th 1377, 1387 [theft by false pretenses does not 

require that the defendant take property, just that the victim 

relinquish possession and title of the property]; CALJIC 

No. 14.10 (7th ed. 2005) [jury instructions for theft by false 

pretenses is “accomplished in that the alleged victim parted” with 

property “intending to transfer ownership thereof”]; Use Notes to 

CALCRIM No. 1804 [referencing Cheeley in the instructions for 

theft by false pretenses]; 3 Wharton’s Criminal Law (15th ed.

2023) § 4:29.)

Under Jones and Cheeley, Fink could be convicted of theft 

by false pretenses even if he did not personally receive the 

victim’s money. As in those cases, the undisputed evidence of the 

nine challenged counts demonstrates the victims’ funds were 

transferred based on Fink’s false inducements. In each case, the 

funds were taken from the victim—either through a bank levy or 

a till tap—solely for Fink’s benefit. After the funds were taken, 

either Fink received the money (as in count 22, where the victim 

sent the funds directly to USJRU), or a county sheriff or other 

county department received the money on Fink’s behalf (as in the 

other eight counts).
48

2) Fink’s cited cases are 

distinguishable

Fink maintains that Jones and Cheeley no longer reflect the 

law of theft by false pretenses. But the authority Fink cites is 

distinguishable and does not conflict with Jones and Cheeley.

For example, Fink cites People v. Wooten (1996) 

44 Cal.App.4th 1834 to support his argument that the law 

requires the victim to transfer the funds directly to the 

defendant. (Id. at p. 1842.) However, Wooten addressed the 

victim “reliance” requirement of the offense, not the element at 

issue here. (See id. at pp. 1842-1843 [describing the elements of 

theft by false pretenses as including proof that “the owner 

transferred the property to the defendant in reliance on the 

representation”]; see also Styne v. Stevens (2001) 26 Cal.4th 42, 

57 [“An opinion is not authority for a point not raised, considered, 

or resolved therein.”].) Further, for the elements of the section 

532 offense, Wooten cites to cases that are consistent with Jones

and Cheeley. (Wooten, at p. 1842, citing Perry v. Superior Court

(1962) 57 Cal.2d 276, 282-283 [relying on Jones and other cases

to describe the relevant element as requiring proof “that the 

owner was in fact defrauded in that he parted with his property 

in reliance upon the representation”]; People v. Whight (1995) 

36 Cal.App.4th 1143, 1151 [addressing the victim reliance 

element and defining the relevant element here as satisfied when 

one “‘defrauds any other person of money, labor, or property, 

whether real or personal, . . .’”].)

The other cases Fink cites are equally distinguishable.

Some involved crimes other than theft by false pretenses. (See 

Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1049 [concerning 

receipt of stolen property, not theft by false pretenses]; People v. 
49

Traster, supra, 111 Cal.App.4th at pp. 1386-1389 [concerning

grand theft by trick, not theft by false pretenses]; People v. 

Shannon (1998) 66 Cal.App.4th 649, 654 [concerning theft in the 

context of shoplifting, not a false pretenses case]; see also People 

v. Kaufman (2017) 17 Cal.App.5th 370, 380 [concluding the 

evidence supporting a grand theft charge would also support a 

conviction under section 532].) In others, the victim did not lose 

possession of the funds because the victim discovered the deceit 

and prevented the transfer of property to the defendant or an 

intermediary. (See People v. Layman (1968) 259 Cal.App.2d 404,

407-408 [concluding the crime was an attempt because the victim 

stopped the transaction before paying the defendant].)

Accordingly, the trial court did not err in determining Fink 

committed theft by false pretenses. Because the evidence at trial 

proved the victims’ funds were transferred from the victims’ 

possession to either Fink or a third party who held those funds 

for Fink’s benefit, we reject his challenges to the sufficiency of the 

evidence supporting counts 2, 9, 22, 30, 42, 43, 46, 47, and 56.

3. Substantial evidence supports Fink’s conviction 

on counts 20, 21, 41, 45, 47, 50, and 55

a. Factual background 

The evidence relevant to the seven convictions of theft by 

false pretenses where Fink claims there was no proof of a false 

writing is as follows: 

(1) George v. Toys [R] Us (count 20): The parties 

stipulated that the LASD received a letter from “David Anderson 

of USJRU” along with a writ of execution requesting bank levies 

on U.S. Bank and Citibank. The writ was for the small claims 

case “George versus Toys [R] Us out of Contra Costa County 
50

Superior Court.” The LASD received $4,948.60 from U.S. Bank 

after executing a levy in reliance on the writ. Los Angeles 

County later sent a check to USJRU for $4,936.60. 

A financial forensic expert identified a bank statement and 

check copy that matched the county check made to USJRU, as 

well as a Los Angeles County warrant for $4,936.60, regarding 

the case of George v. Toys [R] Us, with a deposit ticket and 

account number for David Anderson and a copy of the check 

made out to USJRU and endorsed by David Anderson. A

computer forensic examiner also found files regarding the case of 

George v. Toys [R] Us in Fink’s electronic records.

(2) Alsartawi v. Best Buy (count 21): The parties 

stipulated that the Merced County Sheriff’s Office received a 

letter from “David Anderson of USJRU, Inc.,” instructing it to 

serve a bank levy on Citibank based on a writ of execution for the 

small claims case “Alsartawi versus Best Buy out of Stanislaus 

County Superior Court, SC359045.” The sheriff’s office received 

$3,992.93 from Citibank after executing a levy in reliance on the 

writ. Merced County later sent a check to USJRU for $3,910.93. 

(3) Sanchez v. El Pollo Loco (count 41): The parties 

stipulated that the Kern County Sheriff’s Office received a letter 

from “David Anderson at USJRU,” instructing it to serve a bank 

levy on Wells Fargo based on a writ of execution for the small 

claims case “Sanchez versus El Pollo Loco out of Los Angeles 

County Superior Court, 05M 09208.” The sheriff’s office received

$9,676.87 from Wells Fargo after executing a levy in reliance on 

the writ. Kern County later issued a check to USJRU for

$9,664.87. 

A financial forensic expert identified a bank statement and 

check copy that matched the county check made payable to 

USJRU, as well as a warrant from Kern County for $9,664.87. 
51

The payment was for the civil writ of Sanchez v. El Pollo Loco,

was endorsed by David Anderson, and was deposited in October 

2014 into USJRU’s account. A computer forensic examiner found 

files relating to the case of Leonardo Sanchez v. El Pollo Loco in 

Fink’s electronic records. 

(4) Hickel v. United Valet Parking (count 45): The 

prosecution presented court records from the small claims case of 

Hickel v. United Valet Parking, including an assignment of 

judgment to USJRU. Evidence also showed that the Amador 

County Sheriff’s Office received a letter from USJRU requesting 

service of a levy on Wells Fargo pursuant to a writ of execution. 

The sheriff’s office executed the writ and received a check from 

Wells Fargo, which it deposited into the Amador County civil 

trust fund checking account until the funds could be transferred 

to USJRU. The day the sheriff’s office received the county 

warrant, it also received information from the San Joaquin 

County Sheriff’s Office that stopped the office from sending the 

check to USJRU. Ultimately, the money from Wells Fargo was 

returned to the civil trust fund, and another warrant was issued 

to United Valet Parking. 

The Amador County Sheriff’s Office clerk identified some of 

the documents, including the writ of execution, the letter of 

instruction, the information from the San Joaquin County

Sheriff’s Office, and the original warrant from the county auditor 

with “void” written on it by the clerk. A computer forensic expert

identified documents found on Fink’s computer regarding the 

case of Hickel v. United Valet Parking. 

(5) Lough v. Petco (count 47): At trial, the prosecution 

presented court records from the case of Elizabeth Lough v. Petco 

Animal Supplies, including an assignment of judgment to 

USJRU. Evidence also showed that, following the filing of the 
52

assignment, the Glenn County Sheriff’s Office received a letter of 

instruction from USJRU to levy U.S. Bank for the small claims 

case of Lough v. Petco. The sheriff’s office received and deposited 

a check from U.S. Bank. After that, the California Attorney 

General’s Office contacted the sheriff’s office and requested 

documents regarding the levy. 

At trial, the clerk who processed the check from U.S. Bank 

identified the letter of instruction from David Anderson, the 

revocation included with the letter of instruction, the second page 

of the writ, the check for $4,425.15 from the finance department,

the sheriff’s office’s claim to the finance department requesting 

issuance of the check, and a subsequent email from Petco that 

indicated Lough had already been paid. A computer forensic 

expert who examined Fink’s computer found documents

pertaining to the case of Elizabeth Lough v. Petco. 

(6) Lema v. Unified Parking (count 50): The parties 

stipulated that the LASD received a letter from David Anderson 

of USJRU instructing the LASD to serve a bank levy on East 

West Bank based on a writ of execution for the small claims case 

of Paula Lema v. Unified Parking. In reliance on the writ, the 

LASD served the levy on East West Bank. The LASD received 

$2,539.72 from East West Bank. Los Angeles County later issued 

a check to USJRU for $2,527.72. 

A financial forensic expert identified a bank statement and 

check copy that matched the LASD check made payable to 

USJRU, as well as a Los Angeles County warrant for $2,527.72

related to the case of Paula Lema v. Unified Parking. The expert 

also identified a bank deposit ticket for the account of David 

Anderson and a copy of the deposited check paid to USJRU with 

an endorsement on the back. Other evidence showed files on 
53

Fink’s computer pertaining to the case of Paula Lema v. Unified 

Parking.

(7) Reid v. California Parking Systems (count 55): At 

trial, the parties stipulated that the LASD received a letter from 

David Anderson of USJRU instructing the LASD to serve a levy 

on California Parking Systems based on a writ of execution for 

the case of Jonathan Reid v. California Parking Systems. The 

LASD went to the location listed in the letter to serve the levy. 

However, the LASD could not find the company. The same 

month, the LASD received a letter from David Anderson of 

USJRU with instructions to serve a bank levy at Chase Bank 

based on a writ of execution for the case of Jonathan Reid v.

California Parking Systems. The LASD executed the levy and 

received $2,343.61 in reliance on the writ. Los Angeles County 

later sent a check to USJRU for $2,331.61. In addition, files on 

Fink’s computer contained information about the victim.

b. Substantial evidence supported the false 

writing element of the crime

Fink claims that evidence supporting counts 20, 21, 41, 45, 

47, 50, and 55 is insufficient because the prosecution failed to 

establish that the documents used to carry out the crimes were 

false writings under section 532. A conviction of theft by false 

pretenses requires (1) corroboration by either a false token or 

false writing, (2) a writing subscribed by or in the handwriting of 

the defendant, or (3) testimony of two witnesses or testimony of 

one witness and corroborating circumstances. (See § 532, 

subd. (b); accord, People v. Henning (2009) 173 Cal.App.4th 632, 

642.)

Fink argues that as to counts 20, 21, 41, 45, 47, 50, and 55,

the prosecution did not introduce evidence of a false writing 
54

beyond hearsay evidence. Fink asserts that in the other counts, 

the People showed there was a false writing with testimony that 

the notarization was fake, or testimony that the signature on the 

assignment was not authentic. As to the challenged counts, 

however, Fink claims the prosecution’s “evidence failed to prove 

that these particular transactions were anything but a legitimate 

debt-collection.” 

Here, there was substantial evidence of a false writing as to 

each of the challenged counts. For each count, the prosecution 

presented circumstantial evidence showing the writings Fink 

submitted to superior courts and sheriff’s offices were false 

because he used a fake identity and a shell company. Moreover, 

proof of the false writings was established by witnesses, including 

notaries and other claimants, who testified about Fink’s other 

section 532 counts, which involved the same ongoing criminal 

scheme. This evidence supplied sufficient corroboration to 

sustain Fink’s conviction. (See People v. Gentry (1991) 

234 Cal.App.3d 131, 139 [“The multiple witnesses required under 

Penal Code section 532, subdivision (b), need not testify to the 

same instance of pretense. When more than one witness testifies 

to a defendant’s false pretenses, even though made on separate 

occasions, the multiple witness requirement is met as long as the 

same type of scheme is involved, and the same manner is 

employed.”]; People v. Miller (2000) 81 Cal.App.4th 1427, 1442 

[corroborative evidence may be found in the defendant’s 

declarations to other persons].) Fink employed a broad criminal 

scheme to steal funds from dozens of victims. There was no 

evidence that Fink ever conducted a legitimate judgment 

recovery or debt collection business. Substantial evidence 

supported counts 20, 21, 41, 45, 47, 50, and 55.
55

E. We Remand for Resentencing on Counts 54, 59, 62,

and 63 To Allow the Trial Court To Exercise 

Sentencing Discretion Under Amended Section 654

1. Factual background 

Counts 54 (§ 532, subd. (a)) and 59 (§ 115, subd. (a)) 

charged Fink with crimes in connection with the small claims 

case of Anderson v. Sears. The trial court sentenced Fink for his 

conviction on count 54 to a middle term of two years, which was 

stayed under section 654. For his conviction on count 59, the 

court sentenced Fink to a consecutive term of 16 months, which 

consisted of one-third the middle term of 24 months (eight

months), doubled because of a prior strike. 

Counts 62 (§ 115, subd. (a)) and 63 (§§ 664/487, subd. (a)) 

charged Fink with crimes in connection with the small claims 

case of Carter v. Staples. For his conviction on count 62, the court 

sentenced Fink to a consecutive term of eight months, which 

consisted of one-third the middle term of 24 months. For his 

conviction on count 63, the court sentenced Fink to a middle term 

of one year, which was stayed under section 654. 

2. Applicable law

Recent amendments to Penal Code section 654, which took 

effect after Fink was sentenced, give trial courts the discretion to 

select any available term of imprisonment, regardless of the 

length. (§ 654, as amended by Stats. 2021, ch. 441, § 1.) 

“Previously, where . . . section 654 applied, the sentencing court 

was required to impose the sentence that ‘provides for the longest 

potential term of imprisonment’ and stay execution of the other 

term[s]. (§ 654, former subd. (a) [Stats. 1997, ch. 410, § 1].) As 

amended by Assembly Bill [No.] 518, section 654 now provides 
56

the trial court with discretion to impose and execute the sentence 

of [any] term, which could result in the trial court imposing and 

executing [a] shorter sentence rather than the longe[st] 

sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379; 

see People v. Kramer (2002) 29 Cal.4th 720, 723-725

[former subdivision (a) of section 654 includes enhancements 

when determining which offenses provide for a longer potential 

term of imprisonment].)

Before the amendments, to determine which term was the 

longer sentence for former section 654, the proper comparison 

was the longest potential term of imprisonment given the 

charges, not the term the court actually imposed. (See § 654, 

former subd. (a) [“shall be punished under the provision that 

provides for the longest potential term of imprisonment”]; see 

also People v. Kramer, supra, 29 Cal.4th at pp. 722-723.) That 

determination also includes sentencing enhancements. (Kramer,

at p. 723.)

3. The amendments to section 654 require 

resentencing

The parties agree, and we concur, the amendments to 

section 654 apply retroactively to Fink’s sentences. (See People v. 

Mani, supra, 74 Cal.App.5th at p. 379.) The only question is 

whether remand is warranted. The People assert remand is not 

needed on counts 54 and 59 because the court stayed the 

sentence on the longer term of two years for count 54 and 

imposed a shorter consecutive term of 16 months for count 59.

Likewise, the People contend remand is unnecessary regarding 

counts 62 and 63 because the court imposed the shorter sentence

on count 62 and stayed the longer sentence on count 63. 
57

Based on the sentences imposed, the trial court complied 

with former section 654. The sentence range under section 532,

subdivision (a) (count 54), and under section 115, subdivision (a) 

(count 59), is the same—16 months, two years, and three years. 

However, the strike finding doubles the potential sentence on 

count 59, and therefore the potential sentence on count 59 is 

longer than the potential sentence on count 54. Thus, it appears 

the trial court followed former section 654 by imposing the longer 

potential sentence and staying the shorter sentence. We reach 

the same conclusion with respect to count 62 (§ 115, subd. (a)) 

and count 63 (§§ 664/487, subd. (a)). The sentencing range for 

section 115, subdivision (a), is 16 months, two years, and three 

years, and the sentencing range for count 63 was eight months, 

12 months, and 18 months. Comparing the potential sentence on 

each count, the court imposed the sentence with the longer 

potential sentence (count 62) and stayed the sentence with the

shorter potential sentence (count 63).

We presume the court was not exercising discretion it had 

not yet been granted under amended section 654. (See People v. 

Gutierrez (2014) 58 Cal.4th 1354, 1390 [“Absent evidence to the 

contrary, we presume that the trial court knew and applied the 

governing law”].) Trying to determine what a trial court would 

have done had it been aware of its discretion is speculative here. 

Rather, we remand for resentencing because the record does not 

clearly indicate the trial court would have imposed the same 

sentence had it had that discretion at its disposal. (Gutierrez, at 

p. 1391.)
58

F. The Restitution Order on Counts 15 and 19 Is Not 

Supported by Substantial Evidence

1. Factual background 

The court ordered victim restitution in the amount of 

$101,881.73. Fink challenges that order with regard to two 

counts (counts 15 and 19). The evidence at trial showed the 

following for those counts: 

(1) Glickstein v. PacBell (count 15): The parties 

stipulated that the KCSD executed a levy on behalf of Fink on 

Chase Bank for $8,243.73 and issued a check to USJRU in the 

same amount. An attorney for AT&T (formerly PacBell)

discovered the levy was improper and demanded reimbursement

from Fink. Fink sent a full refund to PacBell. Although PacBell 

suffered no economic loss, the trial court ordered Fink to pay 

PacBell $8,243.73 in restitution. 

(2) Artolachipe v. Unified Valet Parking (count 19): The 

trial court ordered Fink to pay Unified Valet Parking $14,916.71

in restitution on count 19. This included $10,573.04 for two 

levies LASD executed on East West Bank. The undisputed 

evidence showed the first levy for $5,358.68 was returned to East 

West Bank.27

2. Applicable law and standard of review

Restitution is based on the amount of loss the victim claims 

and should fully reimburse the victim for every economic loss the 

defendant’s criminal conduct caused. (See § 1202.4, subds. (a)(1) 

27 Based on the second levy, the LASD sent a check to USJRU 

for $5,202.36, which was not returned. 
59

[“[i]t is the intent of the Legislature that a victim of crime who 

incurs an economic loss as a result of the commission of a crime 

shall receive restitution directly from a defendant convicted of 

that crime”] & (f); see also People v. Woods (2008) 

161 Cal.App.4th 1045, 1049 [“section 1202.4 . . . limit[s] 

restitution awards to those losses arising out of the criminal 

activity that formed the basis of the conviction”].) In general, a 

defendant forfeits claims of error by the trial court, including in 

calculating restitution, when the defendant fails to object in the 

trial court. (See People v. Anderson (2010) 50 Cal.4th 19, 26 & 

fn. 6; People v. Pinon (2016) 6 Cal.App.5th 956, 968; People v. 

Garcia (2010) 185 Cal.App.4th 1203, 1218.) However, a victim 

restitution order is not authorized if no loss was suffered. 

(See People v. Slattery (2008) 167 Cal.App.4th 1091, 1094-1095 

[striking trial court’s victim restitution order requiring the 

defendant to pay restitution to an entity that suffered no loss].) 

Further, an order requiring the defendant to pay restitution to 

someone who, based on undisputed evidence, is not entitled to it 

is an unauthorized sentence. (People v. Lee (2018) 24 Cal.App.5th 

50, 54, fn. 2; Woods, at p. 1050.) An unauthorized sentence 

“‘constitutes a narrow exception to the general requirement that 

only those claims properly raised and preserved by the parties 

are reviewable on appeal.’” (Anderson, at p. 26; see also People v. 

Rivera (2019) 7 Cal.5th 306, 348-349 [holding an unauthorized 

sentence is one that “‘“could not lawfully be imposed under any 

circumstance in the particular case”’” and “is reviewable on 

appeal regardless of whether it was objected to at trial”].) We 

review the trial court’s restitution order for an abuse of 

discretion. (People v. Grandpierre (2021) 66 Cal.App.5th 

111, 115.)
60

3. The trial court erred in ordering Fink to pay 

restitution for amounts already returned to the 

victims

Fink argues the trial court should not have ordered 

restitution of $13,602.41 ($8,243.73 plus $5,358.68) on counts 15 

and 19 because the undisputed evidence showed those funds were 

returned to the victims. The People contend that Fink forfeited 

his argument because he failed to object to the restitution order 

in the trial court. 

We agree with Fink. The victims of the crimes in counts 15 

and 19 were not entitled to restitution because the undisputed 

evidence showed the funds were returned to them. The order 

requiring Fink to pay the restitution was therefore unauthorized, 

and Fink did not forfeit his argument by failing to object. (See 

People v. Williams (2017) 7 Cal.App.5th 644, 696 [stipulating to 

restitution did not forfeit “the purely legal issue whether the 

court imposed the restitution order in excess of its statutory 

authority”]; People v. Percelle (2005) 126 Cal.App.4th 164, 179 

[unauthorized restitution order was “in excess of [the court’s] 

statutory authority,” and the defendant did not forfeit the issue 

by failing to object].)

The cases on which the People rely to argue that the 

forfeiture exception should not apply are distinguishable. In both 

People v. Garcia, supra, 185 Cal.App.4th at p. 1218 and People v. 

Brasure (2008) 42 Cal.4th 1037, 1075, the parties disputed the 

facts that supported the restitution orders. The courts therefore 

found that by failing to object, the defendants “forfeited any claim 

that the order was merely unwarranted by the evidence, as 

distinct from being unauthorized by statute.” (Basure, at p. 1075; 

see also Garcia, at p. 1218 [reasoning the “appropriate amount of 

restitution is precisely the sort of factual determination that can 
61

and should be brought to the trial court’s attention if the 

defendant believes the award is excessive”].)

Here, the parties do not dispute the facts underlying the 

restitution amounts for counts 15 and 19. Those undisputed facts 

show the victims did not suffer the economic losses identified in 

the restitution order. The trial court therefore abused its 

discretion because the restitution order is unauthorized by 

statute. The portion of the restitution order requiring Fink to 

pay $8,243.73 on count 15 and $5,358.68 on count 19 is stricken.

G. Remand Is Required for Resentencing on Fink’s 

Conviction on Count 16 Under the Amended Version 

of Section 1170, Subdivision (b)(6)

1. Factual background 

Fink attached to his sentencing brief a letter from his 

brother that described Fink’s traumatic childhood experiences. 

The letter stated Fink grew up in a “broken household” with “an 

abusive father.” The letter further stated Fink “was put into the 

system at an early age by his mother as he was (ADD & ADHD)” 

and Fink was “in and out of Juvenile Hall as well as Foster 

homes as his mother truly couldn’t handle him and his biological 

father had abandoned him.” 

The trial court sentenced Fink on count 16 (§ 115, subd. (a)) 

to the middle term of two years, which it doubled because of the 

prior strike. The court explained it chose the middle term 

because of Fink’s criminal history, the sophistication of his 

crimes, and his attitude toward victimizing unsuspecting 

individuals and corporations. 
62

2. Applicable law

While this appeal was pending, the Governor signed into 

law Assembly Bill No. 124, which became effective on January 1, 

2022. (Stats. 2021, ch. 695, § 5.3.) Assembly Bill. No. 124 

amended section 1170 to make the lower term the presumptive 

sentence under certain circumstances. (Stats. 2021, ch. 695, 

§ 5.3.) As relevant here, lower-term sentencing is presumptively 

appropriate where a defendant “has experienced psychological, 

physical, or childhood trauma” and that trauma “was a 

contributing factor in the commission of the offense.” (§ 1170, 

subd. (b)(6)(A); see Cal. Rules of Court, rule 4.420(e)(1).) Where 

the presumption applies, the court must impose the lower term 

unless it “finds that the aggravating circumstances outweigh the 

mitigating circumstances that imposition of the lower term would 

be contrary to the interests of justice.” (§ 1170, subd. (b)(6).) 

Even where the presumption does not apply because there is no 

evidence that the circumstances listed in paragraph (6) are 

present, the trial court retains discretion to impose the lower 

term. (§ 1170, subd. (b)(7).)

3. The record does not clearly indicate the court 

would impose the same sentence under the

amended section 1170

The People concede the amendments to section 1170 apply

retroactively to Fink. (People v. Gerson (2022) 80 Cal.App.5th 

1067, 1095 (Gerson) [Assembly Bill No. 124 applies retroactively 

to nonfinal cases on direct appeal].) Nevertheless, the People

assert that remand is unnecessary because the trial court’s 

statements at sentencing demonstrate it would not have imposed

the lower term on count 16. The People also contend Fink cannot 
63

show he would benefit from the presumption because he did not 

show he suffered the requisite childhood trauma or that it 

contributed to his crimes. (§ 1170, subd. (b)(6).) Fink responds 

that unless the People meet their burden to show the record 

“clearly indicates” the court would reach the same sentence, 

remand is required.

The letter from Fink’s brother suggests Fink may have 

suffered from childhood trauma, abuse, and abandonment. 

Before Assembly Bill No. 124, Fink had no reason to develop this 

evidence further. The court also had no reason to find that past 

trauma contributed to Fink’s offense because there was no 

statutory basis to apply a lower term based on such a finding. 

(Gerson, supra, 80 Cal.App.5th at p. 1096; see also People v. 

Banner (2022) 77 Cal.App.5th 226, 242 [“record is likely 

incomplete relative to statutory factors enacted after judgment 

[is] pronounced”], citing People v. Frahs (2020) 9 Cal.5th 618, 

637-638.) Nor did the trial court find there were any aggravating 

circumstances that would warrant a departure from the lower 

term. (§ 1170, subd. (b)(6) [court may depart from the lower term 

only if it finds “the aggravating circumstances outweigh the 

mitigating circumstances [such] that imposition of the lower term 

would be contrary to the interests of justice”].) Because the court 

lacked the relevant statutory guidance, we cannot be sure the 

court would have found either mitigating or aggravating 

circumstances had the amendments been in place.

Contrary to the People’s argument, there is no indication—

much less a clear one—that the court would have imposed the 

same middle term on count 16 had Assembly Bill No. 124 been in 

effect at the time of sentencing. (See Gerson, supra, 

80 Cal.App.5th at p. 1096.) The court’s remarks at sentencing 

justify imposing the middle term. However, the statements 
64

reveal nothing about how the court would have sentenced Fink 

under the lower-term presumption under the amended 

section 1170. Thus, based on the record and the amended

section 1170, remand for resentencing is warranted. In 

resentencing Fink, the trial court shall account for the new 

legislative changes.

H. The Trial Court Must Reevaluate the Sentence on the 

Section 186.11 Enhancement

1. Factual background 

The trial court found true the allegation under 

section 186.11, subdivision (a)(1)—commonly called the 

“aggravated white collar crime enhancement”—because Fink 

engaged in a pattern of criminal conduct that resulted in victim 

losses exceeding $100,000. The court found the economic losses 

of Fink’s victims totaled $101,881.73. Based on the 

section 186.11 finding, the trial court imposed an additional oneyear term of imprisonment under section 12022.6. While noting 

section 12022.6 had been repealed after Fink’s crimes, the court 

cited People v. Abrahamian (2020) 45 Cal.App.5th 314 to support 

its determination that the statute still applied in Fink’s case. 

2. Applicable law

Section 186.11, subdivision (a)(1), provides: “Any person 

who commits two or more related felonies, a material element of 

which is fraud or embezzlement, which involve a pattern of 

related felony conduct, and the pattern of related felony conduct 

involves the taking of, or results in the loss by another person or 

entity of, more than one hundred thousand dollars ($100,000), 

shall be punished, upon conviction of two or more felonies in a 
65

single criminal proceeding, in addition and consecutive to the 

punishment prescribed for the felony offenses of which he or she 

has been convicted, by an additional term of imprisonment in the 

state prison as specified in paragraph (2) or (3) of 

section 12022.6.” The purpose of the aggravated white collar 

crime enhancement is to provide for greater punishment for those 

criminals who engage in a pattern of fraudulent activity that 

results in a larger amount of accumulated takings or victim 

losses. (People v. Martinez (2017) 10 Cal.App.5th 686, 725; People 

v. Williams (2004) 118 Cal.App.4th 735, 747.)

3. Fink’s arguments

Fink asserts three challenges to the imposition of the 

section 186.11 enhancement. First, he claims that because the 

victims’ total economic losses were less than $100,000, 

section 186.11 does not apply and the enhancement must be 

stricken. Second, he argues the repeal of section 12022.6 

requires that we strike the enhancement. Third, Fink maintains 

that even if this court does not strike the enhancement, because 

he is entitled to resentencing for other reasons, the matter must 

be remanded for the trial court to reconsider the sentence on the 

enhancement in light of the amendment to section 1385 based on 

Senate Bill No. 81 (2021-2022 Reg. Sess.). As we explain, only 

Fink’s third contention has merit.
66

4. The reduction in the amount of restitution does 

not require the court to strike the section 186.11

enhancement

Fink asserts that section 186.11, subdivision (a), no longer 

applies because the total victim restitution in this case is less 

than $100,000. As discussed, we strike the portion of the

restitution order regarding counts 15 and 19, which reduces the

total restitution amount to $88,279.32. 

But section 186.11 does not require actual victim loss. The 

aggravated white collar crime enhancement is triggered by 

“felony conduct [that] involves the taking of, or results in the loss 

by another person or entity of more than one hundred thousand 

dollars ($100,000).” (§ 186.11, subd. (a)(1), italics added.) Courts 

have defined a “taking” as the total value of all property the 

defendant took through his crimes, even if the victim later

recovered some or all of it or received some other compensation. 

(People v. Martinez, supra, 10 Cal.App.5th at pp. 725-726 

[defining funds that the defendants returned to the victims as a 

“taking” under section 186.11]; accord, People v. Frederick (2006) 

142 Cal.App.4th 400, 421 [where defendant “exercise[d] dominion 

and control over the funds,” it was “proper to include them in 

calculating any excessive taking amounts,” notwithstanding 

benefits provided in exchange, or partial recovery by police]; see 

id. at p. 422 [“‘[T]he Legislature did not intend that the 

application of section 12022.6 should depend upon the fortuitous 

circumstances of whether the police were able to recover stolen 

property or the victim was able to establish a civil claim for the 

return of property or its proceeds . . . .’”].)

Here, even though the victims on counts 15 and 19 

ultimately recovered their funds, the evidence shows those funds 

were taken from the victims’ accounts at Fink’s behest. On 
67

count 15, the KCSD executed a levy on Fink’s behalf, seized funds 

from the victim’s account, and sent the funds to Fink’s shell 

company, USJRU. On count 19, the LASD executed a levy on 

Fink’s behalf and removed funds from the victim’s bank account. 

Although the return of those funds warrants a reduction in the 

amount of victim restitution ordered on counts 15 and 19, section 

186.11, subdivision (a), still applies because the funds were taken

from the victims. (People v. Martinez, supra, 10 Cal.App.5th at 

pp. 725-726.) 

5. The repeal of section 12022.6 by operation of 

law does not render section 186.11 inapplicable

Fink argues the section 186.11 enhancement is 

unauthorized because section 12022.6 has been repealed by 

operation of its sunset provision. Section 186.11, 

subdivision (a)(1), incorporates the sentencing terms in former 

section 12022.6. Section 12022.6 contained a “sunset clause,” and 

was repealed by operation of law as of January 1, 2018 (i.e., 

before Fink’s trial but after his crimes). (People v. Medeiros

(2020) 46 Cal.App.5th 1142, 1147 (Medeiros).) According to the 

sunset clause, when the Legislature did not enact a successor 

statute by January 1, 2018, section 12022.6 was repealed. 

(§ 12022.6 subd. (f); Stats. 2010, ch. 711, § 5.) To date, the 

Legislature has not enacted a successor statute. However, 

section 186.11 is still in effect and continues to call for the 

additional punishment specified in section 12022.6.
68

a. There is no evidence the Legislature 

intended to impose shorter prison terms in 

amending section 12022.6

Citing In re Estrada (1965) 63 Cal.2d 740, 748, Fink argues 

that we must strike the enhancement under section 186.11. 

Estrada held that when the Legislature amends a statute to 

mitigate punishment and there is no saving clause, the 

amendment operates retroactively to impose the lighter 

punishment. (Ibid.) More recently, however, the California 

Supreme Court held that Estrada does not apply to a defendant 

who was convicted when a provision calling for increased 

punishment was still in effect and had not yet sunsetted. (In re 

Pedro T. (1994) 8 Cal.4th 1041, 1043 (Pedro T.) [discussing a 

repealed Vehicle Code section].) Instead, courts must look to the 

legislative intent in assessing whether the planned repeal of a 

statute imposing additional penalties applies retroactively. (Id.

at p. 1045.) An express saving clause is not necessary to preserve 

punishment under a repealed statute. “Rather, what is required 

is that the Legislature demonstrate its intention with sufficient 

clarity that a reviewing court can discern and effectuate it.” (Id.

at pp. 1048-1049.)

In evaluating the legislative intent of the Vehicle Code 

section at issue, the Pedro T. court looked to the Legislature’s 

statement of purpose when enacting the repealed statute. 

(Pedro T., supra, 8 Cal.4th at p. 1046.) The court also observed 

that “the very nature of a sunset clause, as an experiment in 

enhanced penalties, establishes—in the absence of evidence of a 

contrary legislative purpose—a legislative intent the enhanced 

punishment apply to offenses committed throughout its effective 

period.” (Id. at p. 1049.) The court further considered the 

practical effect of retroactivity and concluded the Legislature did 
69

not intend the planned repeal of the statute to apply 

retroactively. (Id. at pp. 1046, 1048.)

In line with Pedro T., we look to section 12022.6’s 

legislative history and language for guidance on legislative 

intent. The legislative history of section 12022.6 shows the 

Legislature intended to impose longer prison terms on a person 

who caused property loss above the specified threshold amounts.

In amending section 12022.6, the Legislature stated: “It is the 

intent of the Legislature that the amendments to Section 12022.6 

of the Penal Code by this act apply prospectively only and shall 

not be interpreted to benefit any defendant who committed any 

crime or received any sentence before the effective date of this 

act.” (Stats. 2007, ch. 420, § 2; cf. People v. Green (2011) 

197 Cal.App.4th 1485, 1489, fn. 3 [the higher monetary threshold 

amounts enacted in 2007 applied prospectively only].) The 

Legislature also considered the Assembly Floor Analysis, which 

stated in part, “‘Penal Code Section 12022.6, enacted 

approximately 30 years ago on July 1, 1977, is one of California’s 

original determinate sentencing enhancements. The excessive 

takings enhancements are extremely important in the 

prosecution of “white-collar” crime in California. Without the 

enhancements, the penalties for the theft or destruction of 

property worth $2.5 million are the same as the theft of property 

worth $400.’” (Sen. Com. on Public Safety, Analysis of Assem. 

Bill No. 1705 (2007-2008 Reg. Sess.) Sept. 5, 2007.)

The statute on its face also specified the repeal was done 

only so that the Legislature could revisit the enhancement 

amounts in light of inflation. (§ 12022.6, subd. (f).) There is also 

no evidence of a contrary legislative purpose to ameliorate 

punishment for those who steal in excess of the threshold 

amounts during the effective period of the statute. We cannot 
70

infer from the sunset provision the Legislature determined a 

lesser punishment would serve the public interest. (Pedro T.,

supra, 8 Cal.4th at p. 1045.) Indeed, a contrary rule would 

arbitrarily remove commensurate punishment for defendants 

whose cases happened to be pending at the time of the planned 

repeal and before any reenactment of section 12022.6. That 

would mean the punishment applicable to someone who stole 

$1,000 in merchandise would also apply to situations like Fink’s, 

in which he took over $100,000 from his victims. That 

discrepancy is inconsistent with the statute’s purpose and 

legislative history. Indeed, “a rule that retroactively lessened the 

sentence imposed on an offender pursuant to a sunset clause 

would provide a motive for delay and manipulation in criminal 

proceedings.” (Pedro T., at pp. 1046-1047.)

b. Courts have found punishment may be 

imposed under section 12022.6 for crimes 

committed before the section sunsetted

As Fink recognizes, other appellate courts have examined 

whether, after the repeal of section 12022.6, punishment may be 

imposed under its provisions for crimes committed when the 

statute was in effect. Both cases applied Pedro T. and concluded, 

as we have, that punishment may be imposed. We agree with the 

reasoning and holdings of Medeiros and Abrahamian.

In Medeiros, supra, 46 Cal.App.5th at pages 1144, 1147, the 

defendant committed embezzlement and grand theft of property 

valued at over $1.3 million while section 12022.6 was in effect, 

but was sentenced after the statute’s repeal. On appeal, the 

defendant argued the court should strike the enhancement 

because section 12022.6 was repealed before he was sentenced. 
71

(Medeiros, at p. 1147.) The court rejected the defendant’s 

argument. It noted “[t]he plain language” of section 12022.6

“expressly declared [in subdivision (f)] that the intent of the 

Legislature in including a sunset provision was to allow for 

review of the effects of inflation on the threshold amounts 

applicable to the prison term enhancements.” (Medeiros, at 

p. 1151.) The court concluded it was clear “that the Legislature 

planned the conditional repeal as a mechanism to review the 

effects of inflation, not because it determined enhancements 

should no longer apply for excessive taking in 10 years.” (Ibid.) 

In other words, “the Legislature expressed its intent with 

sufficient clarity by expressly stating the purpose of the sunset 

provision was to review the threshold loss amounts of the 

enhancements, not to eliminate them.” (Ibid.)

The Medeiros court found this conclusion was also 

consistent with the legislative history of section 12022.6. The 

court concluded that the legislative history, “combined with the 

retention of express language in the statute regarding intent to 

review the threshold amounts for the effects of inflation, is 

persuasive evidence that the Legislature intended the sunset 

provision to operate as it had in the past—as an opportunity to 

review the loss thresholds, not as a permanent repeal of the 

enhancements.” (Medeiros, supra, 46 Cal.App.5th at pp. 1152-

1154.) The court held the Legislature intended section 12022.6 to 

apply to defendants who committed their crimes before 

January 1, 2018. (Medeiros, at p. 1157.)

In People v. Abrahamian, supra, 45 Cal.App.5th 314, the 

court also concluded that the repeal of section 12022.6 applied on 

a prospective basis only. Abrahamian had been convicted of 

forgery and fraud offenses resulting in victim losses in excess of 

$200,000. (Abrahamian, at p. 320.) Among other things, she was 
72

sentenced for an enhancement under former section 12022.6, 

which was repealed before her sentencing but was in effect when 

she committed her crimes. (Abrahamian, at pp. 320-323.) She 

argued that because of the repeal, the sentence had to be stricken 

as unauthorized by law. (Id. at p. 336.) The court concluded that 

Pedro T. was controlling and that Abrahamian had “failed to 

show that, when the sunset provision of section 12022.6 was 

enacted, the Legislature did not intend to apply the provision’s 

enhanced punishment to offenses committed throughout its 

effective period.” (Abrahamian, at pp. 337-338.)

Fink asserts that both cases are distinguishable and 

misinterpret section 186.11. He argues Medeiros and 

Abrahamian ignore that the sunset provision was in 

section 12022.6, not in section 186.11 (which incorporates

section 12022.6 by reference). According to Fink, the fact that 

the sunset provision is in a statute that was incorporated by 

reference requires different rules of statutory interpretation. 

Fink’s argument is not persuasive. “‘It is a well established

principle of statutory law that, where a statute adopts by specific 

reference the provisions of another statute, . . . the repeal of the 

provisions referred to does not affect the adopting statute, in the 

absence of a clearly expressed intention to the contrary.’” 

(Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58-59.)

Fink also asserts Pedro T. is distinguishable because the 

Legislature did not entirely repeal the provision in that case, but 

instead merely directed that the older, lesser punishment go back 

into effect. (Pedro T., supra, 8 Cal.4th at p. 1043.) But this is a 

distinction without a difference. The prospective-only repeal of 

the enhancement in section 12022.6 had the same effect of 

reducing punishment to the level it was at before the adoption of 

the enhancement. Further, this case, like Pedro T., involves 
73

additional punishment that was repealed by a sunset clause. The 

Pedro T. court’s reasoning, that “the very nature of a sunset 

clause, as an experiment in enhanced penalties, establishes—in 

the absence of evidence of a contrary legislative purpose—a 

legislative intent [that] the enhanced punishment apply to 

offenses committed throughout its effective period,” applies 

equally here. (Pedro T., at p. 1049.)

In short, Fink’s claim that the court erred in imposing a 

sentence under section 186.11 because section 12022.6 had been 

repealed under its sunset clause by the time of his sentencing

lacks merit.

6. The trial court must reevaluate the sentence on 

the section 186.11 enhancement in light of 

Senate Bill No. 81’s amendment to section 1385

Fink argues that, even if this court does not find an 

independent reason to strike the section 186.11 enhancement, if 

the matter is remanded for resentencing for any reason, the trial 

court must reevaluate the sentence on the section 186.11 

enhancement in light of Senate Bill No. 81’s amendment to 

section 1385. 

We agree. In 2021, the Legislature enacted Senate Bill 

No. 81, which amended section 1385 to specify factors that the 

trial court must consider when deciding whether to strike 

enhancements from a defendant’s sentence in the interest of 

justice. (Stats. 2021, ch. 721, § 1.) The People acknowledge that,

after January 2022, a court sentencing on a section 186.11 

enhancement would have to consider the new mitigation factors

put in place by the amendment to section 1385. (§ 1385, 

subd. (c)(7) [Senate Bill No. 81 “shall apply to sentencings 

occurring after the effective date of the act that added this 
74

subdivision”]; People v. Sek (2022) 74 Cal.App.5th 657, 674 

[“Because any resentencing in this case will take place after 

Senate Bill No. 81 became effective on January 1, 2022, we agree 

with [defendant] Sek that the court must apply the new law in 

any such proceeding”].)

Although Fink was sentenced before the effective date of 

Senate Bill No. 81, he must receive the benefit of the amendment 

to section 1385 for purposes of his sentence on the section 186.11 

enhancement because the full sentencing rule allows the trial 

court to reevaluate his entire sentence on remand. (See People v. 

Valenzuela (2019) 7 Cal.5th 415, 424-425 [“[T]he full 

resentencing rule allows a court to revisit all prior sentencing 

decisions when resentencing a defendant”]; People v. Buycks 

(2018) 5 Cal.5th 857, 893 (Buycks) [same].)

DISPOSITION

The victim restitution order is vacated. On remand, the 

trial court is directed to strike $13,602.41 in restitution ordered 

on counts 15 and 19 ($8,243.73 on count 15 and $5,358.68 on 

count 19) and reimpose the restitution order in the amount of

$88,279.32. Fink’s sentences on counts 16, 54, 59, 62, and 63, 

and the section 186.11 enhancement are vacated. We therefore

vacate Fink’s entire sentence.

On remand the trial court may revisit all of its prior 

sentencing decisions in light of all the new legislation and our 

opinion. (See People v. Valenzuela, supra, 7 Cal.5th at pp. 424-

425; Buycks, supra, 5 Cal.5th 857 at p. 893.) We express no 

opinion regarding what specific sentence the court should impose 

on remand.
75

Following resentencing, the trial court shall prepare an 

amended abstract of judgment and forward a certified copy to the 

Department of Corrections and Rehabilitation. In all other 

respects, the judgment is affirmed.

RAPHAEL, J.*

We concur: 

SEGAL, Acting P. J.

FEUER, J.

* Judge of the San Bernardino County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.