P.
v. Aguayo
Filed 5/29/13 P. v. Aguayo
CA2/7
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 SEVEN
THE PEOPLE,
Plaintiff and
Respondent,
v.
JESUS DURAN AGUAYO, et al.,
Defendants and
Appellants.
B236827
(Los
Angeles County
Super. Ct.
Nos. BA382793/BA327051)
APPEAL
from judgments of the Superior Court of
County. Larry P. Fidler, Judge. Affirmed as modified.
Robert Derham, under
appointment by the Court of Appeal, for Defendant and Appellant Jesus Duran
Aguayo.
Marilee Marshall, under
appointment by the Court of Appeal, for Defendant and Appellant Sofia Aguayo.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Steven D. Matthews and Herbert S.
Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
Jesus Duran Aguayo and Sofia Aguayo appeal from the judgments upon their respective multiple convictions
and sentences for filing false tax returns, conspiracy to file false tax
returns, filing 19 Preliminary Change of Ownership Reports (“PCORâ€) containing
false information in Los Angeles County Recorder’s Office in violation of Penal
Code
section 115 and conspiracy to file false documents. Specifically they assert that their
convictions on the counts alleging a violation of section 115 must be reversed
as a matter of law because a PCOR does not constitute an “instrument†subject
to section 115. In addition, they claim
that the trial court imposed unauthorized sentences when it ordered them to
surrender their real estate licenses and to refrain from obtaining real
property through adverse possession. As
we shall explain, a PCOR constitutes an instrument under section 115 because
the information contained in a PCOR is used by public agencies to determine the
appropriate property tax to assess to real property transfers and thus the
reliability of the information disclosed in a PCOR affects the integrity of the
public tax rolls. Nonetheless, Aguayos’
contention about their sentences has merit.
Accordingly, we modify their sentences and affirm the judgment in all
other respects.
FACTUAL AND
PROCEDURAL BACKGROUND
name="_ftnref2" title="">[2]
Appellants’
Real Estate Business
Since the late 1980s appellants, who are also married,
worked as licensed real estate agents.
Mr. Aguayo was also a real estate broker. Their business consisted of acquiring
distressed properties, usually through adverse possession. Some of the properties they acquired they
would fix and sell and others they kept as rental properties; appellants
managed over 100 rental properties between 1992 and 2006.
Background on
the Purpose and Function of PCORs
In connection with obtaining the properties through
adverse possession, appellants filed a quitclaim deed along with a PCOR with
the Los Angeles County Recorder’s office for each property. Pursuant to Revenue and Taxation Code section
480, a change of ownership statement must be filed whenever there is a change
of ownership of real property. (Rev.
& Tax. Code, § 480.)
Under Revenue and Taxation Code section 480.3 a PCOR may
be submitted to the recorder’s office with a deed when a deed is recorded: “Each county assessor and recorder shall make
available, without charge and upon request, a form entitled ‘Preliminary Change
of Ownership Report,’ which transferees of real property shall complete and may
file with the recorder concurrent with the recordation of any document
effecting a change in ownership. The
form shall be signed by the transferee or an officer of the transferee
certifying that the information provided on the form is, to the best of his or
her knowledge and belief, true, correct, and complete.†(Rev. & Tax. Code, § 480.3, subd.
(a).)
The purpose of the change of ownership statement, and more
specifically the PCOR is to aid the county assessor in carrying out the
assessor’s statutory function under Revenue and Taxation Code section 75.10 to
appraise the value of property changing ownership. In fact, according to the legislative history
of Revenue and Taxation Code section 480.3, in enacting the PCOR, the
Legislature declared: “It is the intent
of the Legislature, in enacting Sections 1 and 2 of this act, to establish an
additional aid to each assessor in expediting compliance with Section 75.10 of
the Revenue and Taxation Code with respect to real property which changes
ownership, thereby improving cash flows and increasing revenues for local
governments and providing the assessor with timely information which is needed
to ascertain if a change of ownership of real property has occurred and, if so,
to determine the full cash value of that property on the date of the change in
ownership.†(See Rev. & Tax. Code,
§ 480.3.) To that end, the PCOR and
the change of ownership statement require the party completing the form to
disclose specific information relative to the transfer: “The information shall
include, but not be limited to, a description of the property, the parties to
the transaction, the date of acquisition, the amount, if any, of the consideration
paid for the property, whether paid in money or otherwise, and the terms of the
transaction. The preliminary change in
ownership report shall not include any question that is not germane to the
assessment function.†(See Rev. &
Tax. Code, § 480.4; see also Rev. & Tax. Code, § 480.)
A PCOR is not a public document; it is not open for
public inspection, and absent certain limited circumstances described under
Revenue and Taxation Code section 480 in which disclosure is permitted, the
information contained in the PCOR is kept confidential. (See Gov. Code, § 27280, subd.
(b).) If the document evidencing the
change in ownership (i.e., the deed) is presented to the recorder for
recordation without the concurrent
filing of the PCOR, the recorder may charge an additional recording fee of
twenty dollars, and a change of ownership statement must be filed pursuant to
Revenue and Taxation Code section 480 within 90 days from the date the change
of ownership occurs.
name="_ftnref3" title="">[3] (Rev. & Tax. Code, § 480.3, subds.
(b)& (e) & § 480.)
When it is filed with the recorder’s office the PCOR
receives a document number stamp and a date stamp to indicate that it has been
filed. A PCOR is used by the recorder’s
office to determine whether to collect a “transfer tax.†The PCOR is then separated from the deed and
forwarded to the county assessor’s office to determine whether the change of
ownership warrants a re-assessment of the property. A PCOR is retained for two years in the county
assessor’s office after it is received from the county recorder’s office.
A property appraiser from the Los Angeles County
Assessor’s Office testified in this case about the use of a PCOR by the
assessor’s office. The appraiser
testified that the ownership department of the assessor’s office examines PCORs
to determine whether the transfer of property is a reappraisable event. If it is, then the PCOR is sent to an
appraiser for evaluation. The appraiser
examines the purchase price disclosed in the PCOR to determine whether that
price represents the fair market value of the property. The appraiser also uses other data on sales
of comparable property to aid in the determination. The appraiser testified that the benefit of
the doubt as to value is given to the purchase price listed in the PCOR, but
also noted that the transaction will receive additional scrutiny if that price
does not reflect fair market value as it relates to other comparable
properties. If the purchase price in the
PCOR is accepted as to the value, that amount is entered in the tax roll, which
is then used to determine the property taxes for the property.
Charges and
Evidence Against Appellants
Among the 31 counts filed against appellants,
they were charged with 19 counts of filing a false instrument in violation of
section 115 and one count of conspiracy to file a false document based on
appellants filing 19 PCORs in the Los Angeles County Recorder’s Office with
false information in them.
A representative of the Los Angeles County Recorder’s
Office, Brenda Winston, testified at trial that between 2001 and 2006
appellants presented PCORs for 19 separate properties that had been presented
to the county recorder’s office along with quitclaim deeds for those
properties. According to Winston, in
each PCOR, “Jesus Duran†was listed as the seller or transferor of the property
and “Sofia Aguayo†was listed as the buyer or transferee of the property. In each document, the box next to the
question whether the transfer was between a husband and wife was marked
“no.†Each document indicated that the
transfer was a purchase of property directly from the seller. The documents did not indicate the transfers
were gifts or were from a family member.
The property in each document listed a selling price. The selling prices were between $4,000 and
$60,000. Each PCOR was signed at the
bottom by Sofia Aguayo where it said, “I certify that the foregoing is true,
correct, and complete to the best of my knowledge and belief.â€
With respect to each PCOR, Winston stated that she
searched for the name “Jesus Duran†in the chain of title, but could not find
it. Thereafter a letter was sent to
Sofia Aguayo (listed as the buyer) notifying her that the deed was not in the
chain of title. When a deed is not in
the chain of title, as in the case of the 19 PCORs in this case, no action is
taken to reassess the property, and the PCOR is placed into a “discard†folder
in the county recorder’s computer system rather than forwarded to the
assessor’s office.
During the trial, Mr. Aguayo conceded that he prepared
the 19 PCORs subject to the charges in this case and that his wife, Mrs.
Aguayo, signed them. With respect to the
transactions reflected in each PCOR, Mr. Aguayo was the transferor and Mrs.
Aguayo was the transferee. He testified
that in each PCOR, next to the question whether the transfer was between a
husband and wife, the document stated in parenthesis “addition of a spouse,
death of a spouse, divorce settlement, et cetera.†Mr. Aguayo marked “no†to the question
because he thought it was not applicable.
Mr. Aguayo admitted that he wrote on each PCOR that his name was “Jesus
Duran†even though his entire name was “Jesus Duran Aguayo.†He claimed that he was not trying to mislead
anyone by omitting his entire name.
Although no money was exchanged between Mr. and Mrs. Aguayo for the
properties, Mr. Aguayo indicated on the PCORs that the exchanges were purchases
because there was a transfer of property.
Mr. Aguayo admitted that the PCORs included a box that said “otherâ€
which he could have checked, but he “never looked that far†on the PCORs. When Mr. Aguayo indicated on one of the PCORs
that the purchase price for the property was $20,000, he claimed that he was
merely indicating the amount he had invested in the property. One of the PCORs indicated that there was a
trust deed in the amount of $30,000 to be paid over 15 years at 10 percent
interest with payments of $322.30. Mr.
Aguayo testified that those numbers represented a loan he was trying to secure
to improve the property.
Mrs. Aguayo also testified during the trial. She admitted that she signed the PCORs but
also claimed she did not prepare the documents or review them before signing
them.
Appellants’
Convictions and Sentences
After a jury trial, appellants were convicted of three
counts of filing a false tax return (Rev. & Tax Code, § 19705, subd.
(a)(1); counts 4-6), three counts of conspiracy to file a false tax return
(Pen. Code § 182, subd. (a)(1); counts 7-9), 19 counts of filing a false
document (§ 115; counts 10-28), and one count of conspiracy to file a false
document (§ 182, subd. (a)(1); count 29.)
The trial court sentenced appellants in count 7 to the
upper term of three years in county jail (§ 1170, subd. (h)) and ran the
remaining counts concurrently. During
sentencing, the prosecution requested that appellants “surrender all real
estate and contractor’s licenses and refrain from taking properties via adverse
possession from this day forward.†The
court granted the request and entered the order, noting the appellants “can,
I’m sure, reapply for licensing at the appropriate time, but at this point they
have to give up their licensing.â€
Appellants appeal from the judgments.
DISCUSSION
I. A PCOR is an instrument under Section
115 of the Penal Code
insufficient evidence supports their 19 convictions in counts 10-28 for
violating section 115. Specifically,
they argue the evidence is insufficient as a matter of law to show that a PCOR
is an “instrument†within the meaning of section 115.
115: Offering a False Instrument for Filing in a Public Office
provides: “Every person who knowingly procures or offers any false or forged
instrument to be filed, registered, or recorded in any public office within
this state, which instrument, if genuine, might be filed, registered, or
recorded under any law of this state or of the United States, is guilty of a
felony.â€
Before this court there is no dispute that appellants “filedâ€
the 19 PCORs for the purposes of section 115 nor do they dispute that the
county recorder’s office qualifies as a “public office.†Likewise they are not specifically
challenging the sufficiency of the evidence with respect to the falsity of the
information contained in the PCORs at issue.
Rather the dispute here centers on whether a PCOR qualifies as an
“instrument†under section 115.
Section 115 “punishes offering a false instrument for
filing.†(People v. Tate (1997) 55 Cal.App.4th 663, 664; see also
1790, 1795.) “‘The core purpose of Penal
Code section 115 is to protect the integrity and reliability of public
records.’ [Citations.] This purpose is served by an interpretation
that prohibits any knowing falsification of public records.†(People
v. Feinberg (1997) 51 Cal.App.4th 1566, 1579; People v. Parks (1992) 7 Cal.App.4th 883, 887 [Section 115 was
enacted in 1872 to protect the integrity of the judicial process and public
records].)
The term “instrument†in section 115 is not defined by
statute. Instead, our courts have
applied various case-specific definitions to the term over the years. Our Supreme Court had an opportunity to
review the evolution of the definition of the term recently in
89:
There currently is no precise, generally
accepted definition of the term “instrument†for purposes of Penal Code section
115. Early decisions interpreted the
term narrowly. People v. Fraser (1913) 23 Cal.App. 82, 85, 137 P. 276 (
in section 115, as a written and signed agreement, “delivered by one person to
another, transferring the title to or creating a lien on real property, or
giving a right to a debt or duty.†Cases
following Fraser concluded that a
variety of documents not meeting this definition were not “instruments†within
the meaning of section 115. (See, e.g.,
180-182, 140 Cal.Rptr. 615 [affidavit of voter registration];
101, 15 Cal.Rptr. 390 [application for a permit to issue securities]; see also
28–29, 325 P.2d 1014 [questioning whether documents containing false
information filed with the Department of Motor Vehicles were instruments under
§ 115, but holding that even if they were, prosecution under § 115 was
precluded by special Veh. Code section making the filing of such documents a
misdemeanor].)
More recent cases construing Penal Code
section 115, however, have rejected Fraser‘s
definition and have expanded the meaning of “instrument†to include a broader
range of documents that are filed or registered with a public entity. (See, e.g., People v. Hassan (2008) 168 Cal.App.4th 1306, 1315–1316, 86 Cal.Rptr.3d
314 [confidential marriage certificates]; [People
v. Powers (2004)] 117 Cal.App.4th [291], 294–295, 11 Cal.Rptr.3d 619
[fishing activity records filed with Dept. of Fish & Game];
663, 667, 64 Cal.Rptr.2d 206 [work referral forms documenting hours worked by
probationer on community service project]; People
v. Parks[, supra,] 7 Cal.App.4th
at p. 885, 9 Cal.Rptr.2d 450 [temporary restraining order];
Cal.App.3d 678, 682, 165 Cal.Rptr. 222 [deed filed by defendant, purporting to
convey an easement to herself].) (
pp. 89-93.)
The
more recent cases have rejected Fraser's
restrictive definition of “instrument†without attempting to create an
alternative, comprehensive definition of that term. (See, e.g., People v. Parks, supra, 7 Cal.App.4th at p. 887 [“Whatever else may
be meant by the word ‘instrument,’ on these facts we find that protection of
judicial and public records such as the documents in this case was clearly
within the legislative intent of section 115.â€].) In People
v. Powers, supra, 117 Cal.App.4th at page 297, the court endorsed the view
that a document is an instrument if “‘the information contained in the document
is of such a nature that the government is required or permitted by law,
statute or valid regulation to act in reliance thereon; or . . . the
information contained in the document materially affects significant rights or
duties of third persons, when this effect is reasonably contemplated by the
express or implied intent of the statute or valid regulation which requires the
filing, registration, or recording of the document.’ [Citation.]â€
Thus, in deciding whether section 115 applies, the more recent cases
have focused on the purpose of the statute, which is the “protection of
judicial and public records.†(
Cal.App.4th at p. 667.)
Although
the Murphy court expressly did not
adopt a definition of the term instrument, the Court analyzed this issue before
it by looking at how the document in question—a vehicle theft report—and the
information disclosed in it is used
by the public agency where it was filed.
(See People v. Murphy, supra,
52 Cal.4th at p. 94.) Likewise, in
at page 297, the court concluded the fishing records at issue were instruments
within the meaning of section 115 because (1) the Department of Fish and Game
relied on the records to set fishing limits, which materially affect commercial
fishing enterprises and recreational anglers; and (2) the management of
fisheries demanded accurate information.
In People v. Hassan,
court concluded that confidential marriage certificates are instruments “given
the requirement that they be recorded, their importance, and the vast legal
consequences that flow from them.†With
these principles in mind, we turn to appellants’ contentions.
B. Analysis
Appellants argue that the PCOR is not an instrument under
section 115 because: (1) PCORs do not “compromise†the integrity of judicial or
public records; (2) PCORs are not “public documentsâ€; (3) filing a PCOR is
optional; and (4) it is not a legally significant document – no legal
consequences result from its submission.
Appellants’ contentions lack support in both law and fact.
Pursuant to statute and practice,
the PCOR requires the disclosure of certain information about the transfer of
the property that is used by the county recorder to determine whether a
transfer tax should be collected for the transfer. In addition the assessor’s office relies on
the information disclosed in the PCOR to assist in the determination of whether
the transfer of property is a re-appraisable event and also as an aid in
determining the fair market value of the property. According to the appraiser who testified at
trial, deference may be given to the purchase price listed in the PCOR and if
the purchase price in the PCOR is accepted as to the value, that amount is
entered in the tax roll, which is then used to determine the property taxes for
the property. That the assessor may also
refer to other information to confirm the value of the property does not
undermine the fact that appraisers routinely use and rely on PCORs to assist
them in performing legally mandated property assessment duties. Thus, in our view, the information contained
in a PCOR has significant consequences for public tax records.
For these reasons, we conclude that
a PCOR is an instrument within the meaning of section 115 because the
information contained in a PCOR is used by public agencies to determine the
appropriate property tax to assess to real property transfers. The reliability of the information disclosed
in a PCOR affects the integrity of the public tax rolls. The central purpose of section 115 is to
protect the integrity and reliability of public records, and this purpose is
served by an interpretation of section115 that prohibits any knowing
falsification of information disclosed in a PCOR.
Furthermore, the fact that a PCOR is a confidential
document that is not open for public inspection does not change the
analysis. Section 115 applies to
documents submitted for filing in a public office, but its protection has never
been limited only to those instruments available and open for direct public
inspection. (People v. Powers, supra, 117 Cal.App.4th at p. 297 [section 115
applied to confidential records]; People
v. Garfield (1985) 40 Cal.3d 192, 195 [it is a violation of section 115 to
knowingly offer a false will for probate even if the will is not itself a
public document and does not deceive the public].)
Finally, in reaching this conclusion
we reject appellant’s contention that a PCOR lacks legal significance, and thus
is not an instrument because a $20 fee may be submitted in lieu of filing a
PCOR and thus filing a PCOR is “optional.â€
First, the contention that the PCOR lacks legal import is belied by evidence
in this case that both the county recorder and assessor use and rely on the
information in the PCOR to perform their respective statutory functions. Indeed the information sought in the PCOR
must be disclosed at some point after the transfer of the property, either at
the time of recording the deed or within 90 days of the change of
ownership. Thus, although filing a PCOR
may be technically “optional,†that circumstance does not undermine the purpose
or usefulness of a PCOR when it is filed.
Based on the record in this case the information contained in the PCOR
is of such a nature that the government is permitted by statute to act in
reliance upon it.
Second, appellants have no authority
for the proposition that section 115 applies only to mandatory (rather than
optional) filings. “Section 115, by its
terms, limits prosecution for filing false or forged instruments to those
instruments which, ‘if genuine, might
be filed, registered, or recorded’ under state or federal law. Recording a false or forged instrument is not
actionable under section 115 if the instrument was not legally entitled to be
recorded. [Citation.] (Italics added.)†(People
v. Powers, supra, 117 Cal.App.4th at p.295.) The test is whether a law
instrument, not whether the law mandates
the recording or filing of the instrument. (People
v. Harrold (1890) 84 Cal. 567, 569-570 [no law allows for the recording of
an assignment of interest in letters of patent in the office of the county
recorder, therefore section 115 is inapplicable since even if the instrument
were genuine, it would not be entitled to be recorded under the law of the
state].) This requirement is met here,
where the law authorizes the filing of a PCOR.
(See Rev. & Tax. Code, § 480.3.)
In view of all of the foregoing,
sufficient evidence supports appellants’ 19 convictions for violating section
115 based on filing PCORs containing false information.
Their Real
Through Adverse
The authority to designate the punishment for crimes is
vested exclusively in the legislature. (
519.) The power of the trial court to
sentence a criminal defendant is granted and limited by statute; the duty of
the court is “to determine and impose the punishment prescribed.†(§ 12.)
Thus, the sentencing court cannot impose a sentence that is not
authorized by statute and “has no inherent authority to devise ad hoc penalties
for crimes.†(People v. Montano (1992) 6 Cal.App.4th 118, 123 [holding court
exceeded its authority in ordering defendant to pay
probation costs], superseded
by statute, People v. Orozco (2011)
199 Cal. App.4th 189, 191, 131.)
Appellants contend, and the Attorney General properly
concedes, that the trial court’s orders requiring appellants to surrender their
real estate licenses and refrain from taking properties through adverse
possession were not authorized sentences pursuant to sections 115, 182 or
Revenue and Taxation Code section 19705 under which appellants were charged and
convicted. Indeed, by statute the
authority to bar a convicted felon from practicing as a real estate agent,
broker or salesperson is vested in the Department of Real Estate. (Bus. & Prof. Code, §§ 10003,
10071.)
The California Supreme Court has
held that an unauthorized sentence may be corrected at any time even if there
was no objection in the trial court. (
886; People v. Smith (2001) 24
Cal.4th 849, 854.) Such an unauthorized
sentence may be corrected even where, as here, it is raised for the first time
on appeal. (People v. Smith, supra,
24 Cal.4th at p. 854.) We therefore strike
the trial court’s orders requiring appellants to surrender their real estate
licenses and refrain from taking properties through adverse possession.
DISPOSITION
The judgments are hereby modified to
strike the orders requiring appellants to surrender their real estate licenses
and refrain from taking properties through adverse possession. Upon remittitur issuance, the clerk of the
superior court is directed to prepare amended abstracts of judgment for each
appellant reflecting these modifications and to forward copies to the
California Department of Corrections and
Rehabilitation. The judgments are
affirmed in all other respects.
J.
P. J.
J.
name="_ftn1" title="">[1] All
references to statute are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2] The
facts and background described here relate only to those convictions that
appellants have challenged on appeal.
