P. v. Robinson
Filed 7/17/12 P. v. Robinson CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
SHIRLEY
JEAN ROBINSON,
Defendant and Appellant.
A128648
(Alameda County
Super. Ct.
No. C161798)
Defendant and
appellant Shirley Jean Robinson was convicted by a jury of six counts of
theft after crafting a fraudulent power of attorney and notary seal to
facilitate the refinancing and transfer of title to real property to her
son. Defendant, who received a suspended
sentence, 120 days of jail time served primarily on home electronic monitoring,
and five years of probation, has timely appealed. In doing so, defendant contends several legal
errors were made at trial relating to, among other things, her conviction on
multiple counts of forgery with respect to a single forged document and her
conviction on multiple counts of identity
theft without substantial evidence to support a finding that the victim
acted with reasonable diligence in discovering the crime beyond the three-year
statute of limitations. For reasons set
forth below, we reverse the judgment with respect to counts three through ten
and otherwise affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
On
September 9, 2009, an
information was filed (and later twice amended), charging defendant with the
following offenses allegedly committed on December 19, 2005:
(1) forgery of a power of attorney (Pen. Code, § 470,
subdivision (d))
title="">[1]
(count one); (2) forgery of a notary seal (§ 472) (count two);
(3) identity theft against Jeanne Bente (§ 530.5, subd. (a)) (count
three); (4) forgery of the handwriting of another (§ 470, subdivision
(b)) (count four); (5) identity theft against Rumi Ueno (§ 530.5,
subd. (a)) (count five); (6) forgery of the handwriting of another
(§ 470, subdivision (b)) (count six); (7) identity theft against
Rafael Martinez, Jr. (§ 530.5, subd. (a)) (count seven); (8) forgery
of the handwriting of another (§ 470, subdivision (b)) (count eight); (9) identity
theft against Alze Roberts (§ 530.5, subd. (a)) (count nine); and
(10) forgery of the handwriting of another (§ 470, subdivision (b))
(count ten). The charges against
defendant stemmed from the following series of events.
Over
a decade ago, defendant purchased real property on Cherokee
Street in Oakland
(the Cherokee property) with the intent to operate a board and care
business. Under the terms of this sale,
defendant owned the Cherokee property subject to an interest-only loan that
required a balloon payment in the amount of $337,000 in 1997. When this balloon payment became due,
however, defendant lacked sufficient funds and, thus, lost the property through
foreclosure.
In
1997 or 1998, defendant began discussions with her sister, Odessa Bolton, and a
close friend and coworker, Alze Roberts, about forming a limited liability
corporation to operate another board and care facility or an assisted living
facility. According to this plan, Bolton
and Roberts would repurchase the Cherokee property from the private investors
who acquired it in foreclosure and arrange to hold title on behalf of
defendant, who in turn would provide the down payment and closing costs and
make all mortgage and maintenance payments.
Defendant explained there were “business reasons” for not having her
name on the title, one of which may have been the costly legal dispute she was
engaged in with Medi-Cal. Accordingly,
on July 14, 1998, Roberts and Bolton acquired the Cherokee property by
co-signing on a $121,500 secured loan, with defendant contributing nearly all
of the $20,744 down payment.
In
December 2000, defendant arranged to have the Cherokee property
refinanced. At this time, Bolton’s loan
obligation with respect to the property was extinguished at her request to
permit her to pursue other business interests.
Thus, a new loan in the amount of $224,000 was drawn up in Roberts’s
name only, and the nearly $98,000 in equity yielded from the refinance was,
according to Roberts, given to defendant.
From this time until about June 2003, Roberts made all payments related
to the property. Then, in June 2003,
defendant and her family moved into the property and began making monthly
payments to Roberts to service the loan.
In
June 2005, defendant sought to again refinance the Cherokee property with the
intent to transfer title to her son, Taiye Roberts. According to Roberts, she was unaware of this
proposed sale until she received escrow documents from the title company in the
mail and a phone call from the lender informing her they were trying to close
the deal. As part of this proposed
refinance, Roberts was to receive $130,000 in cash to cover her contributions
to the mortgage, as well as $85,000 as repayment of personal loans she made to
defendant in 2001. Defendant, in turn,
intended to give any appreciation equity to her son as a gift. Roberts had some concerns about this proposed
transaction but, in any event, it never closed due to changes in loan
conditions made by the lender.
In
December 2005, defendant again sought to transfer ownership of the
Cherokee property to her son. This time,
the proposed refinance involved a “no money down” loan in which the lender
would finance the entire purchase price of $600,000 through two loans, one in
the amount of $480,000 and the other in the amount of $120,000, to be secured
by a first and second deed on the property.
Again, Roberts was to receive $130,000 of the proceeds of the
transaction.
To
facilitate the transaction, defendant arranged a meeting on December 19,
2005, with Karrimah Sanders, a mobile notary who was to notarize the closing
documents. Sanders met with Bolton,
defendant, defendant’s son and an unidentified woman.
her name remained on the title as owner of the Cherokee property, the meeting
to notarize the grant deed was rescheduled for the next day. Thus, the next morning, Sanders met again
with defendant, as well as a loan officer, at a restaurant in Emeryville. At that time, defendant produced a notarized
document purporting to grant her power of attorney on behalf of Roberts with
respect to the Cherokee property sale.
This power of attorney contained a forged notary seal, as well as the
forged signatures of four people – to wit, Roberts, the property owner and
defendant’s longtime friend; witnesses Rumi Ueno and Jeanne Bente (as signed
and initialed by her secretary, Monica Barber); and notary Rafael Martinez.
defendant and had her sign the notary book and give her thumb print.
Two
days later, on December 21, 2005, Roberts received a letter from
defendant’s attorney, advising her of the proposed refinance of the Cherokee
property and of defendant’s intention to pay her $130,000 of the proceeds. The letter also included a demand that Roberts
appear at the title company to sign escrow documents by the next day, when
escrow was set to close, or face litigation.
Roberts called the attorney and advised her that she knew nothing of the
proposed transaction. The attorney told
Roberts she would send her copies of the escrow documents but she never did.
Ultimately,
the proposed refinance of the Cherokee property fell through because agents of
the title company suspected the power of attorney submitted by defendant was a
forgery and thus refused to approve the loan.
Weeks later, in February 2006, defendant filed a civil lawsuit
against Roberts to quiet title to the Cherokee property, to which Roberts
responded with a cross-complaint. It was
during the course of discovery in this civil lawsuit that Roberts first
reviewed the power of attorney with her forged signature.
A
warrant for defendant’s arrest was subsequently issued on January 15,
2009. Trial in this criminal matter
began February 22, 2010. Defendant,
testifying on her own behalf, acknowledged the power of attorney was a forgery
but insisted someone else had presented it to the notary and forged the
signatures. Defendant also denied
meeting with Sanders, the notary, on either December 19 or 20, 2005, and
denied that the signature and thumb print in Sanders’s notary book belonged to
her.
The
jury, implicitly rejecting defendant’s testimony, found her guilty on all
criminal counts, and the trial court thereafter suspended her sentence and
placed her on probation for 5 years. The
trial court also ordered her to serve 120 days in jail, with credit for time
served and permission to serve the remaining days on home electronic
monitoring. This timely appeal followed.
DISCUSSION
Defendant
raises the following arguments on appeal:
(1) she was wrongly convicted of four out of the five counts of
forgery under section 470 because there was but one forged document;
(2) the statute of limitations bars her conviction for each of the four
counts of identity theft; (3) she cannot be convicted of both forgery
(§ 470) and identity theft (§ 530.5) where the criminal conduct
(forging a signature) and the victims (Bente, Ueno, Martinez and Roberts) are
the same, and where section 470 is the more specific statute than section
530.5; and (4) the trial court wrongly instructed the jury regarding the
impact of false testimony from a witness.
We address defendant’s contentions below, ultimately concluding her
first two contentions have merit and require partial reversal.
I. Defendant was wrongly convicted of four of the five counts
of forgery.
Defendant was
charged with and convicted of five counts of forgery under section 470 – four
counts pursuant to section 470, subdivision (b), and the remaining count
pursuant to section 470, subdivision (d).
to convict defendant of four of these five forgery counts because all five
counts related to defendant’s forgery of signatures on a single document – the
power of attorney. California law is
quite clear: “Multiple forged signatures
on a single document constitute but one count of forgery.” (
v. Kenefick (2009) 170
Cal.App.4th 114, 116. See also
Cal.App.4th 754, 756 [“Under Penal Code section 470, subdivision (b),
. . . falsification of two signatures on a single trust deed
constituted only one count of forgery”].)
Moreover, this rule of one forgery count per forged document applies
regardless of the fact that defendant was convicted under both
subdivision (b) and subdivision (d) of section 470: “[T]here cannot
be multiple convictions based on any subdivision of Penal Code section 470
where only one document is involved.” (People v. Kenefick, supra, 170 Cal.App.4th at p. 124.) As our appellate colleagues in the
Third District explain: “The rule of one count of forgery per instrument is in
accord with the essence of forgery, which is making or passing a false
document.” (People v. Kenefick, supra, 170 Cal.App.4th at p. 123.)
Accordingly,
four of the five counts of forgery under section 470 – to wit, counts
four, six, eight and ten – must be vacated.
II.
Statute of limitations bars defendant’s conviction for identity theft.
Defendant
also challenges her conviction on counts three, five, seven and nine for
identity theft on statute of limitation grounds. The governing law is for the most part not a
matter of dispute. “In California, the
is jurisdictional. (People v. McGee (1934) 1 Cal.2d 611, 613-614 . . .
; [citation].” (People v. Lopez (1997) 52 Cal.App.4th 233,
244-245.) As such, in a criminal trial,
the People bear the burden of proving by a preponderance of the evidence that a
defendant’s prosecution in not barred by the applicable statute of
limitations. (Ibid.)
Here,
the parties agreed at trial that three years is the statute of limitations
governing the identity theft counts.
this case was initiated outside the three year statutory period, in that the
charged crimes occurred on December 19, 2005, while an arrest warrant was
not issued for defendant until January 15, 2009, nearly 37 months
later. This delay implicates the
so-called discovery rule. Under the discovery
rule, the prosecution can overcome what would otherwise be a
statute-of-limitations bar by pleading and proving each of the following: “(1) when and how the facts concerning
the fraud became known to him; (2) lack of knowledge prior to that time;
(3) that he had no means of knowledge or notice which followed by inquiry
would have shown at an earlier date the circumstances upon which the cause of
action is founded. [Citation.]” (
562.) Thus, as these pleading and proof
requirements reflect, in this context, “the word ‘discovery’ is not synonymous
with actual knowledge. [Citation.] ‘The statute commences to run
. . . after one has knowledge of facts sufficient to make a
reasonably prudent person suspicious of fraud, thus putting him on
inquiry. . . .’ ” (People
v. Zamora, supra, 18 Cal.3d at pp. 561-562, fn. omitted.)
In
applying this rule, “[o]nce the [trial] court determines that the facts stated
in the pleadings are sufficient and do not show, as a
reasonable diligence the plaintiff could have discovered the fraud at an
earlier time then the reasonable diligence question becomes an issue for the
trier of fact.” (People v. Zamora, supra, 18 Cal.3d at p. 562.) On appeal, the jury’s findings with respect
to reasonable diligence are issues of fact reviewable under the substantial
evidence standard. (People v. Zamora, supra, 18 Cal.3d at p. 565.) Further, in reviewing for substantial
evidence, the court must strictly construe the statute of limitations in favor
of the accused. (
Here,
the trial court instructed the jury that defendant could not be found guilty of
identity theft unless the jury first found the People had proved by a
preponderance of the evidence that prosecution of this case began within three
years of the date that the alleged crimes were or should have been discovered:
“A defendant may not be convicted of
Penal Code Section 530.5(a), Identity Theft, unless the prosecution began
within three years of the date that the crimes were discovered or should have
been discovered. The present prosecution
began on January 15th, 2009.
“A crime should have been discovered
when the victim was aware of facts that would have alerted a reasonably
diligent person in the same circumstances to the fact that a crime would have
been committed.
“The People have the burden of proving
by a preponderance of the evidence that the prosecution in this case began
within the required time, . . . . To meet the burden of proof
by a preponderance of the evidence, the People must prove that it is more
likely than not that prosecution of this case began within the required
time. If the People have not met this
burden, you must find the Defendant not guilty of Identity Theft.”
Thereafter,
in finding defendant guilty, the jury specifically found true that “the above
violation was not discovered until February 2006, that the violation was
discovered by Alze Roberts while reviewing documents of civil discovery, that
Ms. Roberts did not have actual or constructive knowledge of the document prior
to the date of discovery, and that the discovery was not made earlier because
the fraudulent documents were under the control of defendant or her agents
prior to the civil suit that prompted discovery[.]”
on this issue lack the support of substantial evidence, requiring vacation of
her conviction on counts three, five, seven and nine. Having thoroughly reviewed the record,
strictly construing the statute of limitations in favor of defendant as the law
requires (People v. Zamora, supra, 18
Cal.3d at p. 574), we agree. The
following evidence is relevant.
Alze
Roberts, the first of the victims to discover defendant’s criminal activity,
did not actually discover the power of attorney with her forged signature until
February 2006, when she was reviewing documents subpoenaed by her attorney
in the civil case defendant brought against her. However, the record reflects that Roberts was
at least alerted to the existence of the power of attorney before
February 2006. Specifically,
according to Roberts’s testimony, on December 21, 2005, she received a
letter from defendant’s attorney, Phyllis Voisenat, advising her that the
Cherokee property was being sold and that she had until the next day, when
escrow was set to close, to execute escrow documents. If Roberts did not do so, the letter
continued, defendant would sue her to quiet title.
In
response to Voisenat’s December 21, 2005 letter, Roberts called Fidelity
National Title (Fidelity), the title company named in the letter, and spoke
with two individuals regarding the proposed Cherokee property sale.
this call to Fidelity “probably the next week” after receiving the letter. On cross-examination, Roberts testified that
her call “may have been” placed later than one week after receiving the letter,
but that she was not entirely certain.
The first person at Fidelity with whom Roberts spoke advised her that an
escrow account was open for the proposed Cherokee property sale, but that there
were no documents in the escrow file.
The second person Roberts spoke to, a supervisor, told her there were
documents in the escrow file and that one of these documents was a power of
attorney purportedly signed by Roberts.
Roberts, who later testified that she had never executed any power of
attorney on her own behalf, asked the Fidelity supervisor to send her a copy of
the power of attorney with her purported signature. However, Roberts explained, “they never did,
and it was only when I went though my attorney, Bill Segesta, and he subpoenaed
the records that I, actually, saw the Power of Attorney.”
This
record, we conclude, is sufficient to undermine the jury’s finding that Roberts
lacked constructive knowledge of defendant’s crimes until February 2006,
when she reviewed the escrow file in connection with defendant’s civil suit
against her. While it is true none of
the victims (Bente, Ueno, Martinez or Roberts) actually knew their names were
fraudulently employed by defendant on the power of attorney she created in
December 2005, as pointed out above, a victim “discovers” criminal
activity, not upon gaining actual knowledge of the crime, but upon gaining
knowledge of “circumstances sufficient to make them suspicious of fraud
thereby leading them to make inquiries which might have revealed the fraud.” (People
v. Zamora, supra, 18 Cal.3d at p. 572.) Under this standard, we conclude the record
compels the conclusion that a person exercising reasonable diligence would have
become suspicious enough to undertake a more thorough investigation of the
facts in December 2005 rather than, as alleged, in
February 2006. As set forth above,
in late December 2005, Roberts was told by the Fidelity supervisor there
was a power of attorney purportedly signed by her in the escrow file for the Cherokee
property, even though she admittedly had never signed such a document.
at the heart of all of defendant’s criminal activity. Indeed, evidencing that Roberts was in fact
suspicious of the power of attorney at this time, she immediately asked the
Fidelity supervisor for a copy of it.
The unfortunate fact that the supervisor subsequently failed to adhere
to Roberts’s request does not undermine our ultimate conclusion that Roberts
had a duty, which she failed to discharge, to more thoroughly investigate the
existence of this clearly suspicious document.
In
reaching this conclusion, we acknowledge the People’s argument that Roberts’s
testimony regarding the timing of her conversation with the Fidelity
representatives was ambiguous.
Specifically, Roberts first testified that she called Fidelity “probably
the next week” after receiving the December 21, 2005 letter from
Voisenat. On cross-examination, Roberts
testified that her call “may have been” placed later than the next week after
receiving the letter. While we agree
there is some uncertainty regarding when Roberts was told about the forged
power of attorney, we nonetheless disagree that the record provides substantial
evidence that Roberts was not told about the forged document until at least
January 15, 2006, the date the statute of limitations began to run absent
the benefit of the discovery rule.
Indeed, the January 15, 2006 date is nearly four weeks after
Roberts received Voisenat’s letter, the event that undisputedly prompted her to
call the Fidelity representative who advised her of the power of attorney. And, given Roberts’s initial testimony that
she spoke to Fidelity the “next week” after receiving Voisenat’s letter, the
relationship between this letter and the Fidelity phone call, and the requirement
that we construe the statute of limitations in favor of defendant, we stand by
our conclusion that no substantial evidence supports the jury’s finding of
reasonable diligence in discovering defendant’s criminal activity in
February 2006.
name="_ftnref10" title="">[10]
Accordingly,
because defendant’s prosecution was not initiated within the applicable
three-year statutory period, her conviction on all four counts of identity
theft is invalid and void.
name="_ftnref11" title="">[11] (People
v. Zamora, supra, 18 Cal.3d at p. 547.)
DISPOSITION
The convictions
on counts three, four, five, six, seven, eight, nine and ten are vacated. In all other respects, the judgment is
affirmed. The matter is remanded to the
trial court for further proceedings in light of these changes.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] Unless otherwise stated, all statutory
citations herein are to the Penal Code.
Defendant denied being present
at this meeting and her son and sister (Bolton) corroborated her testimony.
