Filed 9/18/13 P. v. Ayyad CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
EZZAT AYYAD,
Defendant and Appellant. 2d Crim. No. B245507 (Super. Ct. No . 2009017255) (Ventura County)

The trial court, sitting without a ju ry, found Ezzat Ay yad guilty of one count of grand theft by defrauding a public housing authority. (Pen. Code, § 487i.) 1 The trial court also found true the special allegati on that the taking was in excess of $50,000. (§ 12022.6.) We affirm.
FACTS The Ventura County Housing Author ity (Housing Authority) administers Department of Housing and Urban Development (HUD) rent subsidies for low income families. HUD provides regul ations for the subsidies. The amount of the subsidy is dete rmined by the family 's composition and all family income. The client must report al l changes to family, composition, income or

1 All statutory references are to the Penal Code unless otherwise stated.2 assets within 10 days. The head of household has to live in the home fu ll time. If the
head of household is out of the home for more than 14 days, he or she must notify the Housing Authority in writing; if more than 30 days the Hous ing Authority must authorize the absence. If someone is staying at the house two or three days a week, it should be reported. If a head of hous ehold wanted to live 50 percen t of the time in Egypt and 50 percent of the time in the United States, it would not be permitte d. Depe nding on the severity of the omissions or misinformati on, a person could be terminated from the housing program. Emtethal Harmina applied for re nt subsidy voucher. Because of language and other difficulties, the Housing Authority asked Harmina to execute a power of attorney so someone could act on her behalf. Harmina appointed Ayyad as her attorney-in-fact. Ayyad filled out Harmina's original a pplication on August 13, 2002, and an annual recertification for the subsidy from 20 03 to 2007. The applications showed that Harmina, Ayyad, and Sarah, Ayyad's daug hter and Harmina's granddaughter, were the only persons living in the house. Ayyad disclosed only one checking account with a balance of between $300 to $400. From 2002 to 2007, Ayyad failed to disclose: that Harmina was living in Egypt at least 50 percent of the time; that Ayyad's ex-wife, Hanan Botros, was living in the home; that Botros had a substantial in come; and that Ayyad was earning rental income. In addition, Ayyad did not disclose on recertifi cation forms that he had a
Canadian bank account and that he held securities. The parties stipulated that Botros earn ed income as an office manager for a
doctor as follows: in 2002 sh e earned $66,000; in 2003 sh e earned $93,479.50; in 2004 she earned $100,840; in 2005 sh e earned $107,322; in 2006 she earned $107,890. Botros testified in 2007 she earned $5,800 biweekly. Shirley Bumpus, a Housing Authority fraud investigator, testified that if she had discovered that Botros was living with Ayyad and that Harmina was living in Egypt,3 the account would have been term inated. If Botros earned the stipulated salaries between 2003 and 2007, the account would have been terminated. The $66,00 0 Botros earned in 2002 might have disqualified them. On April 17, 2007, a Housing Author ity investigator interviewed Ayyad's daughter, Sarah, at her home. He interviewed her again a few days later at her school. Sarah was nine years old at the time. Sarah to ld the investigator th at she lived with her
mother and father her whole lif e. She said Harmina did not live with them. She was not sure how long Harmina had lived in Egypt, but sh e thought it was her whole life. She said Harmina had been visiting them for about two weeks and she thought Harmina had last visited about five years ago. Special agent David Wales with Homeland Security performed a computerized search of Harmina's travel hi story from 2002 to 2007. The records show
Harmina left the United States on November 23, 2002, and returned in January 2006. She left again in February 2006 and returned on March 28, 2007. Ayyad's sister-in-law told a Housing Authority investigator that between
2000 and 2005 Harmina lived with Ayyad about 50 percent of the time.
A search warrant executed at the resi dence in April 2007 found evidence
that Botros lived there. The evidence included financial papers, clothing, and toiletries. Investigators also found numerous documents showing Ayyad lived there. Investigators discovered only two beds in the residence. Sarah slept in one and someone slept with Ayyad in the master bedroom. When an in vestigator asked Botros about sleeping with Ayyad in the same bed she said, "[t]hat doesn 't mean anything." Investigators found Harmina lying on a couch in the family room . A suitcase filled with clothes was right
next to her. Bumpus testified that the total hous ing benefits extended to Harmina from May 2003 through May 2007 was $62,662.59. The total rece ived for the year beginning June 1, 2006, and ending Ma y 31, 2007, was $16,880.4 DISCUSSION
I. Ayyad contends the one-year senten ce enhancement imposed pursuant to section 12022.6, subdivisi on (a)(1) is not supported by substantial evidence. At the time Ayyad was sentenced, section 12022.6, subdivision (a)(1) provided for a one-year sentence enhancemen t if the loss from taki ng property in the commission of a felony exceeds $50,000. 2 Any money that the government would have been obligated to pay had th e fraud not occurred is not in cluded in calculating the $50,000. ( People v. Crow (1993) 6 Cal.4t h 952, 961-962.) In reviewing the sufficiency of the evidence we view the evidence in a light most favorable to the judgment. ( People v. Johnson (1980) 26 Cal.3d 5 57, 578.) We
discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. ( People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. ( People v. Stewart (2000) 77 Cal.App.4t h 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime or enhancement beyond a reasonable doubt. ( People v. Johnson
, supra , at p. 578.) Bumpus testified that the total amou nt of benefits ex tended from May 2003 through May 2007 was $62,662.59. Of that amount, $16,880 was extended from June 1, 2006 to May 31, 2007. Bumpus also testif ied that if Ayyad had disclosed how much Botros was making between 20 03 and 2007, the account woul d have been terminated. Ayyad points out that the parties sti pulated to Botros's salary only through 2006. He argues we must deduct the $16,880 paid in 2007 for lack of evidence as to what Botros was paid that year. It is true the stipulation only we nt through 2006. But Botros testified in 2007 she earned $5,800 biwe ekly as an officer ma nager, more than she

2 The amount has been increased to $65,000. The amendment is not retroactive. (Stats. 2007, ch. 420, §§ 1 & 2.)5 made in any other year. That is sufficient ev idence to support the tria l court's finding that Ayyad fraudulently obtained the entire $62,662.59. Ayyad argues there is no substantial evidence Harmina was not living in the
house in 2007. But the trial court could reasonably conclude fro m Bumpus's testimony
that Botros's income alone wo uld have terminated the acco unt. Thus evidence that Harmina was not living in the house was not necessary. In any event, Homeland Security reco rds show that between February 23, 2002, and March 28, 2007, Harmin a was in the United States fo r less than one month. In April 2007, when investigator s searched the house, they found Harmina lying on a couch with her suitcase nearby. Investigators foun d only two beds in the house, one for Sarah and one for Ayyad and Botros. Sarah told an investigator that Harm ina did not live with them, she just visited. A reasonable trier of fact could concl ude Harmina was never anything more than a temporary visitor to the house.
II. Ayyad contends the sentencing enha ncement is unauthorized because the aggregate loss did not arise fro m a common scheme or plan. Section 12022.6, subdivision (b) allo ws the amount of the losses to be aggregated only where the amount "arise from a common scheme or plan." Here all the money was taken from the same victim, th e Housing Authority, by the same method, false statements made in voucher applicati ons, and for the same purpose, to obtain housing vouchers. That is more than ample evidence to support the trial court's finding of a common scheme or plan. Ayyad's reliance on People v. Bailey (1961) 55 Cal.2d 514, is misplaced. There, the defendant was ch arged with theft of county welfare funds under false pretences. He received a total of $3,064, in installments of less than $200 each. The court instructed the jury: "[I]f several acts of taking are done pursuant to an initial design to obtain from the owner property having a va lue exceeding $200 and if the value of the property taken exceeds $200, there is one crime of grand theft, but that if there is no such6 initial design, the taking of any property having a value not excee ding $200 is petty theft." ( Id. at p. 518.) The jury found the defenda nt guilty of grand theft. Our Supreme Court determined the jury was pr operly instructed, and reversed the trial court's grant of a
new trial. Here the trial court could reasonably conclude Ayyad's initial plan was to take as much as he could get. He did not stop on his own; he onl y stopped when he got caught. Thus Ayyad's initia l plan encompassed the entire $62,662.59. If anything, Bailey supports the trial court's determination he re that the amounts received by Ayyad should be aggregated. Ayyad's reliance on People v. Sanford (1940) 16 Cal.2d 247, and People v.
Rabe (1927) 202 Cal. 409, is also misplaced. In both cases our Supreme Court upheld the trier of fact's finding th at multiple acts of theft were separate and thus supported multiple convictions. Here, as in the cases relied on by Ayyad, we affi rm the trier of fact's determination, as supported by substantial evidence. The judgment is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.Bruce A. Young, Judge
Superior Court County of Ventura

________________ ______________

William Paul Melcher, under appoin tment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney Gene ral, Scott A. Taryle, Supervising Deputy Attorney General, Pamela C. Hamanaka, Deputy Attorney General, for Plaintiff and Respondent.