Filed 7/6/16 P. v. Ambito CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, D067341 Plaintiff and Respondent, v. (Super. Ct. No. SCD225546) ARNOLFO B. AMBITO, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter I.

Gallagher, Judge. Affirmed as modified.

Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.

Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

In June and September 2005, defendant Arnolfo Ambito committed loan origination fraud by putting false information on three loan applications he submitted to the victim of the offenses, Countrywide Home Loans. In a complaint first filed in February 2010, and subsequently by an amended information, Ambito was charged with three counts of grand theft of personal property (Pen. Code, § 487, subd. (a)),1 and it was alleged he committed two or more related felonies, a material element of which was fraud and embezzlement, that involved a taking of more than $500,000 within the meaning of section 186.11. Finally, it was alleged that the earliest date the offenses could have been discovered for statute of limitations purposes was March 16, 2006, the date on which Ambito filed a declaration in San Diego County Superior Court admitting that he lied on his real estate loan applications. In Ambito's second trial,2 the jury returned guilty verdicts on all counts, found the white collar crime enhancement true, and found the charges were timely filed.

On appeal, Ambito claims the charges were time-barred as a matter of law and the trial court therefore erred in denying his pretrial motion, made before commencement of his second trial, to dismiss the information. Ambito also argues the evidence was insufficient to support the jury's verdict finding the charges were timely filed. Ambito also contends, because the court elected to place him on court probation rather than formal probation, certain supervisory terms of his probation (conditions 6.b., 6.i., 6.j.,

6.k., and 6.l.) associated with formal probation should be stricken. The People concede, and we agree, that on remand those conditions requiring certain interactions between Ambito and a probation officer should be stricken.

I FACTS A. Prosecution Evidence The June 2005 Offenses On June 11, 2005, Ambito signed applications for two loans from Countrywide Home Loans (Countrywide) seeking a first mortgage of $400,000, and a home equity line of credit of $104,000, to purchase property located at 4548 Market Street in San Diego, California. The loans in question were "stated-income" loans. For this type of loan, Countrywide relied on the borrower's representation as to his or her income and, if the borrower was self-employed, Countrywide also required the applicant to provide a letter from a certified public accountant verifying self-employment (CPA letter).3 In the section of the application marked "employment information," Ambito listed his employment as "Ambito Trading" (and his job title as "owner" and "goods trading"), and he listed his business and home address as 271 C Street in Chula Vista. He listed his business phone number as (619) 744-9500, which was the number for the San Diego Police Department. Ambito's application stated he had been employed for five years five

Schwartz reviewed the documentation to make sure it complied with federal regulations, and with internal policies and procedures. She testified she had no reason to question the accuracy of the $20,000 base income as stated by Ambito. She testified the CPA letter in Ambito's file was typical of ones seen during that time period, and it was Countrywide's policy to trust a CPA letter that verified the borrower was self-employed and to not conduct additional investigation into its reliability or accuracy.

Once Schwartz approved the loan, the file was sent to Julie Soares, a loan processor, to assemble the conditions. Soares was responsible for comparing the information in EDGE to Ambito's credit reports, to see if there were any red flags. She completed a quality verification and documentation questionnaire (QVDQ), which was used to detect possible fraud, and the computer program did not detect any red flags. She also filled out a fraud prevention addendum, and again the program did not find anything that appeared to be wrong. Had Soares seen anything fraudulent, she would have

then transferred to the operations division to collect documentation and paperwork.

Drugg obtained certain bank statements from Ambito. They consisted of an ING Direct statement showing a balance of $51,000, a USAA statement showing a balance of $17,000, and an AIG retirement plan through the City of San Diego in the amount of $79,000. reported it. There was nothing in Ambito's application that would have caused Soares to hesitate or that suggested she should speak to a supervisor.6 The accuracy of representations in the loan application were crucial to Countrywide's decision as to whether to approve it. Countrywide used this information to determine the borrower's ability to repay the loan and would not have funded Ambito's loans had it known his income was actually only $7,000 per month, or known that Ambito had a $1,000 per month child support obligation, or known he funded the down payment using unsecured debt. In truth, Ambito's actual income was approximately $7,000 per month (from his job as a police officer), and he actually owed over $1,000 per month in child support obligations.7 On cross-examination, Countrywide employees acknowledged there were flaws or irregularities in the procedures used when processing and funding Ambito's loan. For instance, the applications included a section entitled "employment re-verification." No

She used a checklist and compared that against the materials in the file. This included making sure Ambito had a CPA letter; however, her duties did not include verifying the letter's contents or reviewing it for accuracy. Although she did not recall Ambito's particular loan, Tamp's custom and practice was to use directory assistance or the Internet to determine whether a self-employed person's business existed.

The September Offense In August 2005 Ambito again approached Countrywide for a loan, albeit at a different branch office. Ambito sought a loan of $433,600 to purchase investment property located at 2761-65 G Street. The primary driver for this kind of loan was the buyer's credit score; if the borrower's credit score was good enough, and the borrower's claimed income seemed reasonable and employment was verified, a borrower would qualify for the loan absent other disqualifying factors. A borrower did not need to list all of his or her employers as long as there was sufficient income from those he did list.

Ambito had a phone interview with Tim Treibach, a sales consultant. While they were on the phone, Ambito told Treibach that he had obtained another loan from

Countrywide a few months earlier, and asked Treibach to pull up that application to make things easier by using that application to fill out parts of the new application. Treibach pulled up Ambito's June loan applications to re-verify the employment and asset information and use the prior information. Ambito confirmed he worked at Ambito Trading, but seemed surprised that his income from Ambito Trading was listed as $20,000 per month. Ambito claimed he had worked for Ambito Trading since 2000 and earned $7,000 per month from that company, and that he was also a police officer with a monthly salary from that job of approximately $7,000, and had been so employed for over 22 years.

Treibach believed Ambito Trading was an extant business for which Ambito worked because Ambito had previously provided the CPA letter and the previous loans had closed. Treibach did advise Ambito an underwriter might question the differences in income on his application, because of the substantial decrease in monthly income, but he also told Ambito there might not be any questions raised because Ambito was claiming a decrease in income, which was not as noteworthy as a borrower's claim that his stated income had substantially increased would have been. Treibach did not investigate the drop in stated income from $20,000 to $14,000 because he did not suspect fraud, since Ambito's stated income was lower than it had been, and it appeared there was actually a business called Ambito Trading.

Treibach also relied on Ambito's previous applications when filling out the information on whether Ambito owed alimony, child support, or separate maintenance.

Treibach also obtained updated credit reports and bank statements to ascertain Ambito's liabilities and assets, and entered the information anew into the EDGE system. Ambito signed the application along with closing documents on September 19, 2005.

Janice Cameron was the underwriter for the loan. Cameron received training on how to detect fraudulent loan applications and was encouraged to report fraud if she detected it. A failure to report could result in the loss of her job. Countrywide had to rely on borrowers' honesty because it is impossible to confirm the accuracy of every box checked on every loan application. Cameron testified that, in the case of child support and other similar obligations, it would be against the law to ask the recipient; nor did they go to the courthouse and see if there were pending cases involving the borrower. Like Schwartz, Cameron completed a QVDQ to ensure she had not missed anything. There were no red flags or alerts. The application indicated that someone had called "Teresa" in the police department's human resources division and she confirmed Ambito was employed there. Ambito's loan was approved. It would not have been approved if his income was lower, he had additional debt, or he used unsecured borrowed funds to make any portion of the down payment.

As with the June 2005 loans, Countrywide employees acknowledged there were flaws or mistakes made in connection with processing and funding Ambito's September 2005 loan. For example, Cameron testified that Treibach did not inform her of the decline in stated income between Ambito's two loan applications and, had he done so, she would have taken some undefined action.9 Additionally, if one application lists one

Discovery of the Fraud Ambito was involved in legal proceedings regarding child support following his divorce. In 2006, in connection with those proceedings, Ambito's ex-wife apparently became aware of his income claims on his home loan applications and asked the family court to impute to Ambito the income listed on the loan applications. Ambito filed a written response with the court stating, in pertinent part: "I worked with a loan broker who prepared these documents for me. She insisted that the false incomes stated were necessary in order for me to qualify for these loans. She made . . . me believe that this was not unusual in these transactions and I shouldn't worry about it. . . .

Obviously, the income stated on these applications [is] completely untrue. My only income is from salary as a San Diego police officer. I still sell occasional coins, but at no profit. . . . While I am not happy that I am again being called a liar, I own up to it as far as the applications are concerned." The FBI opened its investigation of Ambito concerning mortgage fraud in November 2007. By March 2009 the FBI was aware of the family court filing by Ambito

application) that the income from that source was only $7000, it raises a suspicion of fraud that should be reported, and it was a mistake for Treibach not to report that discrepancy.

He also testified the reported income drop from the earlier Market Street property loans to the later G Street property loan also should have raised a suspicion by Treibach, and he should have asked Ambito to explain it. Treibach had the duty to report the disparity because it meant fraud may have occurred, and any indication of possible fraud requires reporting.

II LEGAL FRAMEWORK Ambito raises two claims on appeal: the evidence was insufficient to support the jury's verdict finding that the charges were not time-barred, and the trial court erred in denying his pretrial motion to dismiss the information on the grounds the action was time-barred. We first synopsize the substantive rules concerning the running of the statute of limitations before turning to the standard of review governing our assessment of Ambito's claims on appeal.

A. Statute of Limitations and Delayed Accrual The statute of limitations for fraud-based offenses is four years "after discovery of the commission of the offense . . . ." (§ 801.5; § 803, subd. (c).) Although actual discovery will commence the limitations period, the courts have also read a requirement of reasonable diligence into the limitations statute. (People v. Zamora (1976) 18 Cal.3d 538, 561 (Zamora) [noting that discovery provision "has . . . been interpreted to include the same requirement of 'reasonable diligence' in discovering the facts of a theft that the courts have read into the 'discovery' provision of the statute of limitations for tort actions based on fraud as set forth in Code of Civil Procedure section 338, subdivision 4"].) As explained by the court in People v. Petronella (2013) 218 Cal.App.4th 945, 956-957: "In applying the discovery requirement, '[L]ack of actual knowledge is not required to bring the "discovery" provision . . . into play. The crucial determination is whether law enforcement authorities or the victim had actual notice of circumstances sufficient to make them suspicious of fraud thereby leading them to make inquiries which might have revealed the fraud.' [(Quoting Zamora, supra, 18 Cal.3d at pp. 571-572, italics omitted.)] 'However, discovery of a loss by the victim alone is insufficient to trigger the running of the limitations period: "Literally, . . . discovery of a loss, without discovery of a criminal agency, is not enough." [Citation.]' [(Quoting People v. Soni (2005) 134 Cal.App.4th 1510, 1518.)] 'The question is whether there is sufficient knowledge that a crime has been committed.' (People v. Crossman (1989) 210 Cal.App.3d 476, . . . .)" Although "discovery" for purposes of the commencement of the limitations period requires only constructive knowledge, a victim has not constructively discovered the offense if the facts " 'would have only created a suspicion of wrongdoing.' " (People v. Crossman, supra, 210 Cal.App.3d at p. 481.) "[I]t is the discovery of the crime, and not

just a loss, that triggers the running of the statute." (People v. Lopez (1997) 52 Cal.App.4th 233, 246, fn. 4 (Lopez); People v. Kronemyer (1987) 189 Cal.App.3d 314, 334 ["[f]or the purposes of triggering the statute of limitations under a similar tolling statute, a discovery was held not to have occurred even though officials learned substantial facts which would have only created a suspicion of wrongdoing"], disapproved on other grounds in People v. Whitmer (2014) 59 Cal.4th 733, 742.)

Moreover, even when facts are sufficient to arouse suspicion in a reasonable victim, subsequent reassurances by the defendant may operate to reasonably allay concerns and delay the discovery of the fraud. (See. e.g., Garrett v. Perry (1959) 53 Cal.2d 178, 181- [trial court could reasonably find that plaintiff's suspicions "were allayed by defendant's subsequent reassurances"]; accord, Brownlee v. Vang (1965) 235 Cal.App.2d 465, 476 [defendant's "[f]urther representations . . . , designed to allay the suspicions of the plaintiff, were themselves misrepresentations calculated to deceive. That they accomplished their purpose should not now redound to the benefit of the defendant."]; see also Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942, 966.)

Thus, the time when the statute of limitations commenced to run is an intensely factual determination and, at a minimum, requires an evaluation of when the discoverer13

B. Analysis of Standard of Review We consider what standard of review applies to Ambito's claims. It is clear Ambito's primary claim—there was insufficient evidence to support the jury's verdict finding the charges were not time-barred—requires that we must affirm the judgment if enforcement authorities." (Lopez, supra, 52 Cal.App.4th at pp. 247-248, fn. omitted.)

Wong applied that same rationale to private entities who were victims (Wong, at p. 1445), and we adopt that approach in this case.

However, Ambito asserts de novo review applies to his claim the trial court erred when it denied his pretrial motion to dismiss. He recognizes that, in a pretrial motion to dismiss based on a theory of a statute of limitations defense, the defendant bears the burden of proving as a matter of law that the statute of limitations has run (Lopez, supra, 52 Cal.App.4th at p. 251), and if the evidence on the issue is conflicting, the court should deny the motion and leave the issue to the jury. (Id. at p. 250, citing Zamora, supra, 18 Cal.3d at pp. 563-564, fn. 25.) However, Ambito asserts that his motion to dismiss was based on the facts concerning "discovery," which were adduced during the first trial and therefore rested on "undisputed" facts. Relying on dicta from Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704,15 he argues that when the relevant facts are not in dispute, the

We believe the standard of review we should apply when examining the propriety of the trial court's ruling on Ambito's motion to dismiss should turn on the substance of that motion. We conclude his motion to dismiss on limitations grounds was, when shorn of its trappings, a motion to dismiss under section 1118.1. Specifically, the argument he asserted in the motion to dismiss relied entirely on the evidentiary showing made during his first trial on the merits to argue the prosecution could not meet its burden of showing the action was timely filed, and hence was the functional equivalent of a motion pursuant to section 1118.1. Our conclusion is reinforced by the fact that Ambito's motion to dismiss merely reiterated (and indeed incorporated by reference) the exact facts and arguments raised in his companion motion (made explicitly under § 1118.1) that a judgment of acquittal was required because the evidence adduced at his first trial was insufficient to satisfy the prosecution's burden of showing the action was timely filed.

Because we conclude Ambito's "motion to dismiss" was functionally equivalent to, or a repackaged version of, his companion motion filed pursuant to section 1118.1, we believe we must apply the standards of review ordinarily applicable to rulings on section

de novo review to the interpretation of the distinct legal question of when the plaintiff suffered "actual injury" (ibid. [noting it was the "second element of actual injury—which is the element in controversy here"]), and ultimately concluded on de novo review that the trial court had misconstrued when the plaintiffs had suffered actual injury. (Id. at pp. 727-734.) Thus, any implication by Sahadi that de novo review is equally applicable to questions of "discovery" would be dicta.

1118.1 motions to our assessment of Ambito's claim of error as to his motion to dismiss.

When determining whether the evidence was sufficient to support the trial court's denial of a section 1118.1 motion, the standard of review is essentially the same as used when evaluating whether the evidence was sufficient to sustain a conviction on the charged offenses. (People v. Houston (2012) 54 Cal.4th 1186, 1215.) Under that standard, we " 'do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence— evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] . . . "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.' " (Ibid.)

Because we employ the same standards for assessing both Ambito's claim that the evidence was insufficient to support the jury's verdict finding that the charges were not time-barred and his claim the trial court erred in denying his pretrial motion to dismiss the information based on the time bar, we believe our conclusion on the former claim will necessarily subsume the latter. Accordingly, we evaluate whether the evidence, viewed in the light most favorable to the judgment and drawing all reasonable inferences in favor thereof, supports the jury's determination that the action was filed within four years of when the victim or authorities reasonably should have known of Ambito's fraud.

ANALYSIS A. Substantial Evidence Supports the Verdict Ambito, relying principally on Zamora, supra, 18 Cal.3d 538, argues the evidence was insufficient to support the jury's determination that the action was timely commenced. He asserts the evidence compelled the conclusion that, prior to February 15, 2006,16 Countrywide's supervisorial personnel actually knew facts that would have made a reasonably prudent person sufficiently suspicious to have prompted further inquiry and that inquiry would have revealed (prior to February 15, 2006) Ambito had committed fraud in his loan applications.

Ambito makes no claim that the evidence was insufficient to support the jury's implied finding that Countrywide's supervisorial personnel had no reason to know or suspect, prior to February 15, 2006, that Ambito had falsely denied having child support obligations. Instead, he argues the fact the first loans contained an undated CPA letter was a red flag that should have placed Countrywide's supervisorial personnel on notice that he was providing false information concerning his monthly income and should have prompted additional investigation. However, Schwartz (the underwriter who reviewed the first loans and described the absence of a date as a "red flag") also testified the CPA letter in Ambito's file was typical of ones seen during that time period, that it was Countrywide's policy to trust a CPA letter that verified the borrower was self-employed and to not conduct additional investigation into its reliability or accuracy, and that the reason an undated CPA letter raises issues (which she described as "slight implications") 16 The parties stipulated the criminal action was filed on February 15, 2010. was that the absence of a date prevents the lender from determining whether the information in the letter might be outdated.17 A trier of fact could conclude, based on this evidence, that the fact a CPA letter might contain stale information was a minor imperfection that, when compared to all of the other information (the fact that a check of Ambito's credit reports, the QVDQ and fraud prevention addendum did not detect any red flags) would not have made a reasonably prudent person sufficiently suspicious to have prompted further inquiry into whether Ambito had committed fraud in his loan applications.18 Substantial evidence supports the jury's determination the criminal proceeding was timely under the statute of limitations. (Wong, supra, 186 Cal.App.4th at p. 1444; People v. Castillo, supra, 168 Cal.App.4th at p. 369.)

Ambito also argues his revelations to Treibach (in connection with his September 2005 loan application) demonstrates the evidence was insufficient to support the jury's

Ambito argues that, as in Zamora, supra, 18 Cal.3d 538, the "crucial determination is whether law enforcement authorities or the victim had actual notice of circumstances sufficient to make them suspicious of fraud thereby leading them to make inquiries which might have revealed the fraud" (id. at pp. 571-572) and this court should conclude, as did Zamora, "the uncontradicted evidence . . . compels the conclusion that a prudent man apprised of the information known in 1968 would have pursued a more vigorous inquiry." (Id. at p. 572.) However, Zamora merely held that, under the specific facts of that case, "there is not substantial evidence to support the jury's implied findings that reasonable diligence was exercised to discover the fraud . . . ." (Id. at p. 573.) We are unconvinced by Ambito's efforts to bring himself within Zamora's holding, for two reasons. First, when an appellate court must "decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts." (People v. Thomas (1992) 2 Cal.4th 489, 516.)

More importantly, the facts in Zamora involved vastly different circumstances. In Zamora, the authorities knew (within days after a building was set ablaze) that a crime had been committed; and all of the relevant evidence strongly indicated a Mr. Hanak was the arsonist. (Zamora, supra, 18 Cal.3d at pp. 566-568.) However, the investigator mentioned (in a discussion with a deputy district attorney) that Hanak "had no apparent motive and questioned whether he should investigate the possibility of an insurance fraud. When he received no encouragement he terminated this line of investigation." (Id. at p. 569.) The investigation was allowed to lapse, even though other investigators learned the defendant was connected to the burned property (and had been experiencing financial difficulties) and that a witness might be able to connect Hanak to people associated with the defendant. (Id. at pp. 571-573.) On that record, Zamora was "unable to conclude that there is substantial evidence to support" the jury's finding the action was not time-barred because the "evidence produced at trial shows that with the exercise of reasonable diligence the facts constituting the acts of grand theft could have been discovered at an earlier time."19 (Zamora, supra, 18 Cal.3d at pp. 565-566.) In contrast to Zamora, in which the authorities knew some crime had been committed, but simply failed to investigate and hence remained unaware of the full extent of the offenses and the identities of all those involved, there is no suggestion Countrywide knew any crime had been committed that would call for a more thorough investigation. Although the facts presented below would permit a trier of fact to conclude Countrywide imperfectly

B. The Trial Court Properly Denied Ambito's Pretrial Motion As previously discussed, we believe Ambito's "motion to dismiss" was the functional equivalent of a motion for acquittal under section 1118.1. A trial court correctly denies a motion under section 1118.1 where there is substantial evidence that, if credited, would support a guilty verdict. (People v. Harris (2008) 43 Cal.4th 1269, 1286 ["On a motion for judgment of acquittal under section 1118.1, the trial court applies the same standard as an appellate court reviewing the sufficiency of the evidence. The court must consider whether there is any substantial evidence of the existence of each element of the offense charged, sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt."].) For the reasons we previously discussed, there is substantial evidence to support the jury's determination the criminal proceeding here was timely under the statute of limitations, and we therefore conclude the trial court correctly denied Ambito's motion to dismiss.

DISPOSITION On remand, the trial court shall amend defendant's probation terms to reflect that the court placed defendant on court probation rather than formal probation and that probation conditions 6.b, 6.i, 6.j, 6.k and 6.1 be stricken. As so modified, the judgment is affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.