Trial court erred by imposing aggravated white collar crime enhancement based in part on bribery offense that the prosecution did not plead and prove was related to the commission of a grand theft offense. Nilsson, the facilities superintendent for the Sacramento Public Library Authority, was involved in several schemes to receive kickbacks for library maintenance work provided by outside contractors. Another library employee, Mayle, and his wife, Rankins-Mayle, were involved in one of the schemes. Mayle and Rankins-Mayle were convicted of two counts of grand theft and offering a bribe to a public employee. An aggravated white collar crime enhancement (Pen. Code, § 186.11, subd. (a)) was also found true. Prior to sentencing, the trial court struck one of the grand theft counts, and sentenced the Mayles on the remaining counts and enhancements. On appeal, the Mayles challenged the section 186.11 enhancement. Held: Enhancement stricken. The aggravated white collar crime enhancement unambiguously requires the prosecution to plead, and the jury to find, facts set forth in the statute. (Pen. Code, § 186.11, subd. (b)(1).) Those facts include that that the defendant committed “two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct.” (Pen. Code, § 186.11, subd. (a)(1).) As to the Mayes, the information alleged, and the jury found, that the two grand thefts were the two related felonies. However, after striking one of the grand theft counts, the trial court imposed the enhancement based on its own finding that the remaining grand theft was related to the bribery count, a relationship that was neither pleaded in the information nor found by the jury. Because the prosecution did not plead and prove that the grand theft and bribery were related felonies, the trial court erred by imposing the enhancement.

Section 186.11 did not abrogate or modify the Bailey doctrine. The jury in Mayle and Rankins-Mayle’s trial made a special finding that the grand thefts were not separate and distinct offenses. Based on this finding, the trial court concluded that, under People v. Bailey (1961) 55 Cal.2d 514, the facts supporting the grand theft counts constituted only one grand theft and dismissed one of the grand theft counts. On appeal, the Attorney General argued that section 186.11 abrogated or modified the Bailey doctrine and that the trial court was correct in imposing the enhancement. The Court of Appeal disagreed. Bailey held that a defendant may be convicted of multiple counts of grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. Court of Appeal decisions expanded Bailey and consistently held that multiple acts of grand theft pursuant to a single scheme cannot support more than one count of grand theft. Here, there was no evidence that the Legislature expressly or impliedly abrogated the Bailey doctrine when it enacted section 186.11. The Attorney General argued that abrogation should be implied because Bailey and the enhancement are mutually exclusive: the enhancement is imposed for committing related felonies and Bailey merges those same related felonies together. The Court of Appeal rejected the argument, finding the enhancement can still be imposed where, for example, the prosecutor pleads and proves that grand theft and bribery are related felonies. [Editor’s Note: In People v. Whitmer (2014) 59 Cal.4th 733, the California Supreme Court held that the Courts of Appeal had misinterpreted and unjustifiably expanded Bailey. The court clarified that “a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme.” (Id. at p. 742.) The court also held that the holding of Whitmer could not be applied to crimes committed before the decision. In this case, the defendants committed their crimes before Whitmer was decided so the expanded interpretation of the Bailey doctrine applied.]

Evidence of a series of grand thefts committed prior to Whitmer pursuant to an overarching scheme with one group of codefendants supported only one grand theft conviction. Nilsson was also charged with and convicted of the same two counts of grand theft as the Mayles. But unlike the jury that tried the Mayles, the jury that tried Nilsson was not asked to decide whether the counts were separate and distinct under the Bailey doctrine. On appeal, Nilsson argued that the facts were insufficient to support both grand theft counts. The Court of Appeal agreed and concluded that Nilsson had only a single continuing plan or scheme with the Mayles to steal money from the library under the Baily doctrine. (See People v. Packard (1982) 131 Cal.App.3d 622, 625-627.) As a result, he should only have been convicted of a single grand theft as to the scheme with the Mayles. The trial court was ordered to strike one of the grand theft counts. [Editor’s Note: The court noted that Nilsson could have been convicted of multiple counts of grand theft based on Whitmer’s clarification of the Baily doctrine.]

Separate grand theft convictions that covered arrangements with other contractors was proper. Nilsson also argued that there was insufficient evidence to support his other grand theft convictions, which were based on evidence that he had entered into new arrangements with other contractors to receive kickbacks. The Court of Appeal disagreed. Case law before Whitmer supports separate convictions in a case like this where Nilsson colluded with different people at various times to illegally obtain funds from the library. The agreements with the various contractors constituted separate plans. (See People v. Woods (1986) 177 Cal.App.3d 327, 331-332.)