P. v.
Filed 4/15/13 P. v. Martinez 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NOT TO BE PUBLISHED IN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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
ENRIQUE
SANDOVAL MARTINEZ,
Defendant and Appellant.
2d Crim. No. B232880
(Super. Ct. No.
2009019981)
(Ventura
County)
Enrique
Sandoval Martinez appeals from the judgment following his conviction by jury of
making false financial statements (Pen. Code, § 532a, subd. (1));
subd. (a)); money laundering (§ 186.10, subd. (a)); and three counts of
(§ 115, subd. (a)). The jury also
found true allegations of aggravated white collar crime, excess taking, and
excessive transaction values.
(§§ 186.11, subd. (a)(3)), 12022.6, subd. (a)(2), 186.10,
subd. (c)(1)(C).) The trial court
sentenced appellant to 15 years in prison.
sufficient evidence to support his theft
conviction and the accompanying excess taking enhancement; and the trial
court erred by admitting evidence that he used different names in his two
immigration applications, and by instructing the jury with a "false theory
of guilt" for making false financial statements. He further contends that the court violated
section 654 by failing to stay the execution of his sentences for two counts of
offering false documents for recording.
We affirm.
BACKGROUND
The Palmer Property and Related Real Estate Transactions
In
2004, Sharon Jachec worked as a real estate agent for Toll Brothers, the
builder of a residential development in Moorpark, to discuss the purchase of a
home in the development. Real estate
agent Cheri Tucker and appellant met with Jachec in September 2004. Appellant selected a lot and floor plan, gave
Jachec a deposit, and completed a questionnaire, using the name Antonio
Padilla.
On
October 26, 2004, appellant, using the name Padilla, signed an agreement to buy
a residence at 12216 Palmer Drive in Moorpark (the Palmer property) for
$1,775,275. The agreement required
appellant to pay $409,840 to complete the sale, including earlier deposits that
totaled $40,000.
In
October 2005, with the assistance of Tucker Mortgage (a company owned by Cheri,
and her husband, Terry Tucker), appellant, as Padilla, applied to borrow
$1,366,168 from Washington Mutual (WAMU)
property. Earlier that year, in June or
July, appellant had approached Alejandro Aguilera Herrera, a plumber, urging
him to invest in the Palmer property.
Herrera knew appellant as Enrique Sandoval. He met appellant through Alfonso Corona, a
mutual acquaintance.
Appellant
and Corona frequented a restaurant that Herrera owned with his brother, Alfredo
Aguilera. Appellant asked Herrera to
look at the Palmer property and give his opinion about the quality of its
plumbing. During the inspection,
appellant said that Herrera could own or invest in the Palmer property. Herrera said it was impossible. A month or two later, at the restaurant,
appellant asked Herrera something like, "What . . . if
I told you there is a way to buy that property?" Herrera said, "No, not for me."
Appellant also asked if Herrera would like to live there.
On
three or four subsequent occasions, appellant urged Herrera to buy or invest in
the Palmer property. He suggested that
Herrera could "pull up some money out of the property that [he bought with
his] brother
[Aguilera] . . . and . . . pull out
lines of credit." Herrera was not
familiar with lines of credit. Herrera
and his brother owned a house on Avenida De Las Flores, and a house on Calle
Olivo, in Thousand Oaks. Herrera also
owned a house on Calle Violeta in Thousand Oaks.
Later
still, at appellant's suggestion, Herrera met with Terry Tucker, Corona and
appellant at the Tucker home. Herrera
had done plumbing projects for the Tuckers and knew they were in the real
estate business. He had referred
appellant to the Tuckers at one point.
Terry explained that Herrera could obtain more than one home equity line
of credit (HELOC) from his property.
Herrera asked if that was legal.
Terry said, "Yes." Corona
and appellant said that Herrera could invest with them, and they had plans to
buy properties. Herrera said he needed
time to think about their idea.
At
appellant's suggestion, Herrera again met with appellant, Corona, and
Terry. They told Herrera he could obtain
money to invest in the Palmer property, by using his property as security for
HELOCs. When Herrera asked about the
amount of the down payment, the men said it was nearly $600,000. Herrera again refused to invest in the
property.
Appellant
and Corona continued meeting with Herrera to urge him to invest in the Palmer
property. Eventually, he agreed to do
so. As he understood their agreement,
Herrera would provide half of the down payment by obtaining HELOCs on his
property, and appellant would supply the other half. Appellant would make the Palmer property
mortgage payments and give Herrera money for his HELOC payments. The remaining money from Herrera's HELOCs
would be applied to his share of the Palmer property mortgage, and to purchase
other real estate investments. Herrera
would live in the Palmer property. If
the property sold, appellant and Herrera would split any profits "50 and
50." Herrera did not know that
appellant had previously agreed to purchase the Palmer property.
Terry
said he would be in charge of obtaining the HELOCs.
several HELOC lenders. On October 28,
2005, appellant took Herrera to Wells Fargo in Moorpark, WAMU in Ventura, and
E-loan in Camarillo. Herrera went to Bank
of America on November 2, 2005, either alone or with appellant. Herrera's HELOCs totaled $788,826 ($190,900
from Wells Fargo; $174,598 from WAMU; $190,000 from E-loan; and $233,328 from
Bank of America). At least two of the
HELOCs were secured by the Las Flores property.
On
November 2, 2005, appellant accompanied Herrera to Wells Fargo Bank and
WAMU. Herrera used his HELOCs to obtain
cashier's checks payable to Lawyers Title in the amounts of $190,000 (at Wells
Fargo) and $174,000 (at WAMU). He gave
those checks to appellant, who deposited them in the escrow account for the
Palmer property purchase. In addition,
Herrera exhausted his $233,328 Bank of America HELOC and his $190,000 E-loan
HELOC to write two large checks. At
appellant's direction, he gave one of those checks to appellant, and gave the
other check to Corona. The value of the
checks that Herrera delivered to appellant and Corona was nearly $800,000.
On
November 4, 2005, the county recorded a deed of trust granting WAMU a security
interest in the Palmer property (for Padilla's $1,366,168 note to WAMU). That deed transferred title to the Palmer
property from the builder to "Antonio Padilla, a single man." Lawyers Title delivered the Palmer property
keys to appellant upon the close of escrow.
In
November 2005, Herrera and his family moved to the Palmer property. He
repeatedly asked appellant, whom he knew as Enrique Sandoval, why the post
office was delivering mail for Antonio Padilla to the property. After initially failing to respond, appellant
said there were "some things we need to do to keep growing."
Herrera
also asked appellant why he had not provided him with any recorded document
showing Herrera's interest in the Palmer property. Herrera wanted his wife, Filomena Avalos, to
be listed as an owner of the property.
On January 31, 2006, appellant, using the name Padilla, signed a grant
deed that transferred an undivided 50 percent interest in the Palmer property
to Avalos, as a tenant in common with Padilla.
That deed recorded on February 7, 2006.
On
July 15, 2006, appellant, again identified as Padilla, borrowed $262,000 from
ACE Dreams. The loan was secured by a
deed of trust that granted ACE Dreams an interest in the Palmer property. Appellant never told Herrera he was using
that property to secure a loan. Herrera
received a check for about $270,000 from ACE Dreams, a company he thought was
founded by appellant and Corona.
For
nearly two years, appellant made payments on the WAMU mortgage, with checks
that bore a variety of account names.
(The account names included Paradise Insurance Agency, Pacific Economic
Multi-services, Miguel Del Rio, Maria Maldonado, and Maria Lux.) Appellant stopped making mortgage payments on
the Palmer property in September 2007.
Appellant had provided Herrera with money to make the required HELOC
payments. When he ceased doing so,
Herrera could not make all of the HELOC payments, and the lender foreclosed on
his Las Flores property.
On
October 18, 2007, appellant, as Padilla, signed a deed to quitclaim part of his
remaining interest in the Palmer property to Avalos (Herrera's wife). He gave Herrera the quitclaim deed and asked
him to obtain HELOCs on the Palmer property in Avalos's name. Herrera refused. Appellant had already ceased providing
Herrera money for his existing HELOC payments.
The county recorded the Padilla-Avalos quitclaim deed on October 18,
2007. However, 30 minutes earlier, it
had recorded the July 2006 deed that granted ACE Dreams an interest in the
Palmer property. Both deeds were
recorded at appellant's request.
In
2008, an official went to the Palmer property and advised Herrera that his
family had approximately two weeks to vacate the premises. They moved from the Palmer property into the
Las Flores property, but moved again when the lender foreclosed on that
property. Herrera tried without success
to reach appellant by telephoning and visiting his home and office. Appellant had just "disappeared,"
several months before the Palmer property foreclosure.
On
June 4, 2008, WAMU foreclosed on the Palmer property. It sold the property and suffered a loss of
about $733,000, including the difference between the property's $941,000 sale
price and the outstanding WAMU mortgage balance, plus attorneys' fees, taxes,
and sales expenses.
Herrera
received approximately $310,000 from appellant.
That amount includes an ACE Dreams check for approximately $270,000, and
several other payments, with a combined value of approximately $39,000.
Appellant
had a driver's license in his name (Enrique Sandoval Martinez). He had another driver's license in the name
of Antonio Padilla.
Ezequiel
Armendariz, an officer for the Immigration and Customs Enforcement (ICE)
agency, testified regarding two immigration applications that appellant
submitted to ICE. He submitted one
application under the name Enrique Sandoval Martinez and another application
under the name Antonio Padilla.
Appellant
used the name Miguel del Rio to buy property in Nipomo, California. Appellant, as del Rio, provided a bank with a
driver's license number that purportedly belonged to him. That number actually
belonged to a Caucasian female.
Antonio
Padilla's WAMU loan file includes an insurance binder from Paradise Insurance
agent Enrique Sandoval. It also contains
a letter from Enrique Sandoval, of Pacific Multi-Services, to certify their
preparation of Padilla's 2003 and 2004 tax returns. Miguel del Rio's loan file contains a tax
return prepared by Antonio Padilla.
Adela
Vargas met appellant when they were children in Guatemala and knew him as
Enrique Sandoval Martinez. They were
married from 1993 to 2009, and had a child.
Vargas was not aware that appellant used the names Antonio Padilla and
Miguel Del Rio. In 2005, Vargas and
appellant moved into a house on Emerson Street in Thousand Oaks (Emerson
property). Before moving there,
appellant told her to sign some documents and not to ask questions. Three deeds for the Emerson property were
recorded in 2005; each deed showed Adela Sandoval, a single woman, as the
grantee, subject to a lender's security interest. Vargas remained at the Emerson property until
May or June 2008. She moved after
learning that the lender was foreclosing on the property. Sometime earlier, appellant had left the
Emerson property without telling Vargas where he was going.
DISCUSSION
Sufficiency of the Evidence - Theft
Appellant
contends the evidence is insufficient to support his theft conviction, under
either a theft by trick or theft by embezzlement theory. He claims that there is no evidence that he
intended to permanently deprive Herrera of his property, a requisite element of
theft under either theory. We disagree.
In
reviewing claims of insufficient evidence, "we review the whole record in
the light most favorable to the judgment to determine whether it discloses
substantial evidence–that is, evidence that is reasonable, credible, and of
solid value–from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. . . . [W]e presume every
fact in support of the judgment the trier of fact could have reasonably deduced
from the evidence." (
806, [internal citations and quotation marks omitted].) "Unless it is clearly shown that 'on no
hypothesis whatever is there sufficient substantial evidence to support the
verdict,' the conviction will not be reversed." (People
v. Misa (2006) 140 Cal.App.4th 837, 842.)
The
requisite intent for theft is the "intent to permanently deprive,"
which is not intended literally, but "is merely a shorthand way of
describing" the intent to steal. (People
v. Avery (2002) 27 Cal.4th 49, 55.)
A defendant's "'intent to deprive an owner of the main value of his
property is equivalent to the intent to permanently deprive an owner of
property.'" (Id. at p. 57.) The intent
element is satisfied "by the intent to deprive [an owner of his property]
temporarily but for an unreasonable time so as to deprive the [owner] of a
major portion of its value or enjoyment."
(Id. at p. 58.)
In
arguing there is no evidence of his intent to permanently deprive Herrera of
his money, appellant selectively stresses the evidence that supports his
position. For example, he put Herrera's
wife's name on the deed; and for a two-year period, appellant made the Palmer
property mortgage payments, allowed Herrera to use the property, and provided
Herrera money for HELOC payments.
However, appellant took full title to the Palmer property (as Padilla)
when escrow closed in early November 2005.
It was only after Herrera
expressed concern about the absence of any recorded document reflecting his
interest in the property that appellant granted Herrera's wife an interest in
the Palmer property. The deed conveying
her interests did not record until early February 2006. In July 2006, without Herrera's consent or
knowledge, appellant granted ACE Dreams a security interest in the Palmer
property. Moreover, the primary lender
foreclosed on the Palmer property and the HELOC lender foreclosed on Herrera's
Las Flores property, after appellant stopped making mortgage payments and
providing Herrera money for his HELOC account payments. The evidence supports the inference that
appellant's conduct deprived Herrera of the "main value of his property,"
and that he intended to permanently deprive Herrera of his money. (People
v. Avery, supra, 27 Cal.4th at p. 57.)
We
also reject appellant's claim that there is insufficient evidence to support a
conviction of theft by embezzlement because there is no evidence that he
appropriated Herrera's money for his own use.
A conviction for theft by embezzlement requires that the defendant
appropriate the property of another for his own benefit. (See People
v. Fenderson (2010) 188 Cal.App.4th 625, 636- 637, 641.) Here, appellant used Herrera's money for the
down payment on the Palmer property, without listing Herrera or his wife on the
deed. Although he transferred an
interest in that property to Herrera's wife after Herrera complained to him,
appellant ceased making the mortgage payments, which caused the lender to
foreclose upon and sell the Palmer property.
Appellant had also pledged the Palmer property as security for a loan
without Herrera's knowledge or consent.
He ceased providing Herrera funds for HELOC payments, and Herrera
consequently lost the Las Flores property.
Based on the evidence, the jury could reasonably conclude that appellant
appropriated Herrera's money for his own use.
Sufficiency of the Evidence - Excess Taking Enhancement
Appellant
contends that there is insufficient evidence to support the finding that the
property he took from Herrera caused Herrera to lose in excess of
$150,000. (§ 12022.6, subd.
(a)(2).) We disagree.
"We
review the sufficiency of the evidence to support an enhancement using the same
standard we apply to a conviction."
(People v. Gonzales (2011) 51
Cal.4th 894, 941.) If the evidence
reasonably supports the jury's findings, reversal of the judgment is not
warranted merely because the evidence might also support a contrary
finding. (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.)
The
version of section 12022.6, subdivision (a)(2) applicable at the time of
appellant's theft provided an enhancement for taking property during the
commission of a felony, where the loss exceeded $150,000. "The word 'loss,' as used in section
12022.6 in the context of the taking
of property, . . . includes any dispossession which constitutes theft of the
victim's property." (
481, 484.)
Appellant
argues that at most, Herrera lost $51,444, because he gave appellant $554,000
to invest in the Palmer property and appellant "returned $503,556" of
that money. "It is of no
consequence that most of the stolen property was eventually recovered" (
992, 999), or that the owner's ultimate loss was less than $150,000 because
Penal Code section 12022.6 is applicable "'without regard for the duration
of the dispossession.'" (
suggestion that Loera and similar
cases should not apply to his case where, he argues, the "amount and
timing of the taking is less clear."
Moreover,
viewing the evidence in the light most favorable to the judgment, the jury
could reasonably infer that Herrera's loss exceeded $150,000. At appellant's direction, Herrera provided
appellant and Corona with checks that totaled approximately $787,000.
The
$503,556 that appellant claims he returned to Herrera includes Palmer property
mortgage payments that total $83,556.
Herrera did not receive mortgage payments for the Palmer property; WAMU
did. Appellant's failure to continue
paying WAMU led to its foreclosure and sale of the Palmer property. His failure to continue paying Herrera as he
agreed to do led the HELOC lender to foreclose on Herrera's Las Flores
property.
Appellant
contends that the trial court committed prejudicial error by admitting evidence
that he submitted immigration applications in two names (Enrique Sandoval
Martinez and Antonio Padilla).
Specifically, he argues that the court should have excluded the
immigration evidence pursuant to Evidence Code section 352 because it was
unduly prejudicial. We disagree.
We
review the trial court's evidentiary rulings under the deferential abuse of
discretion standard. (
863, 929-930.) Evidence Code section 352
authorizes the trial court to exclude evidence if "its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury." "'Evidence is substantially more
prejudicial than probative . . . if, . . . it poses an intolerable "risk
to the fairness of the proceedings or the reliability of the
outcome."'" (
144.) "'Prejudice for purposes of
Evidence Code section 352 means evidence that tends to evoke an emotional bias
against the defendant with very little effect on issues, not evidence that is
probative of a defendant's guilt.'
[Citation.]" (
Here,
appellant argues that the immigration evidence was unduly prejudicial because
it "established that [he] is an immigrant [who] committed fraud against
the United States," and it was "likely to sway the jury to decide the
case based on an emotional bias against illegal residents rather than the
evidence." The challenged
immigration evidence was not unduly prejudicial. It was relevant to show how appellant
acquired the false Antonio Padilla identity that he used in perpetrating the
crimes. It was also relevant to rebut
appellant's claim that he was relatively naive, in contrast to sophisticated
criminals such as Terry Tucker who, he argued, directed Herrera to obtain the
HELOCs to invest in the Palmer property.
The admission of the challenged immigration evidence did not pose an
intolerable "risk to the fairness of the proceedings or the reliability of
the outcome." (People v. Eubanks, supra, 53 Cal.4th at p. 144.) Moreover, even if the court had erred by
admitting that evidence, the error was harmless. The immigration evidence formed a small part
of the prosecution case, and was presented through the brief testimony of one
witness in a trial with fourteen prosecution witnesses. It is not reasonably probable that the jury
would have reached a result more favorable to the appellant absent such
evidence. (People v. Marks (2003) 31 Cal.4th 197, 226-227.)
CALCRIM No. 2020 (Theories of Guilt for Making False Financial
Statements)
Appellant
contends that the trial court erred by instructing the jury, with CALMCRIM No.
2020, that it could conclude that appellant violated section 532a, subdivision
(1), if it found that he had made a false written statement about his intent to
occupy the Palmer Drive residence.
Appellant is wrong.
Appellant
signed an
stating that he would occupy the Palmer property, and acknowledging that the
"Lender [WAMU] would not have agreed to make the loan if the Property were
not to be owner-occupied." His loan
application stated the Palmer property would be his primary residence. Based on that evidence, the court instructed
the jury as follows, in relevant part:
"The
defendant is charged in Count 1 with making or causing to be made a false
written statement about his/her financial condition, means or ability to pay in
violation of Penal Code section 532a(1).
[¶] To prove that the defendant is guilty of this crime, the
People must prove that:
[¶] 1. The defendant
made or caused to be made a false written statement about his financial
condition, means or ability to pay; [¶] 2. The defendant knew that
the statement was false; [¶] 3. When the defendant made the
statement or caused the statement to be made, he intended that the statement be
relied on; AND [¶] 4. The
defendant made the statement or caused the statement to be made to obtain the
making of a loan for his benefit.
"A
person may make a false statement or cause a false statement to be made either
directly or indirectly, or through his or her agent. . . . [¶] The People allege that the
defendant made or caused to be made the following statements:
[¶] . . . . [¶] He
intended to occupy the 12216 Palmer Drive property as his primary residence . .
. .
"You
may not find the defendant guilty unless you all agree that the People have
proved that the defendant made or caused to be made at least one of these
statements and that the statement was false. You must all agree on which false
statement he made or caused to be made."
Appellant
argues that by allowing the jury to convict him of making a false statement in
violation of section 532a, subdivision (1), based upon his statement of intent
to occupy the Palmer property, the trial court eliminated an element of the
crime—that the statement must be specific to his ability to pay. His argument rests on the faulty premise that
his stated intent to occupy the property was not related to his financial
condition or ability to pay. In so
arguing, appellant cites People v.
Vincent (1993) 19 Cal.App.4th 696, 702.
In Vincent, the defendant made
false statements concerning her name, address and social security number when
she opened two bank accounts. (
She was convicted of making a false financial statement regarding her
financial condition or ability to pay in violation of section 532a, subdivision
(1). In reversing her conviction, the
statements did not concern her financial condition or ability to pay. (Id.
at p.702.)
Appellant's
case is distinguishable from Vincent. The false identity statements of the
defendant in Vincent did not concern
her income, assets, or expenses, or other matters relating to her ability to
pay or financial condition. In contrast,
appellant's statement of intent to occupy the Palmer property related
specifically to his future expenses, and thus, his financial condition and
ability to pay for the WAMU loan. His
loan application included information about his assets, liabilities, income,
and expenses, including his proposed housing expense (in the Palmer property,
if he qualified for the loan). His
occupation of the Palmer property necessarily concerned his financial condition
and ability to pay the lender, i.e.,
the lender could reasonably assume that appellant's only housing expense would
be that attributable to the Palmer property, and it would use that expense to
assess his ability to pay the loan.
Appellant
argues that the execution of three consecutive sentences for three convictions
of offering a false instrument for recording violates the section 654 bar
against double punishment because those crimes shared a single criminal
objective. We disagree.
Ordinarily,
section 654 prohibits multiple punishments for more than one offense where the
offenses are committed during an "indivisible
transaction" having a single criminal objective. (People
v. Gangemi (1993) 13 Cal.App.4th 1790, 1799.) However, a different rule applies to offering
false instruments for filing or recording in violation of section 115. (Id.
at p. 1800.) "For purposes of
prosecution under this section [115], each act of procurement or of offering a
false or forged instrument to be filed, registered, or recorded shall be
considered a separately punishable offense." (§ 115, subd. (d).) "This language demonstrates an express
legislative intent to exclude section 115 from the penalty limitations of section
654. Thus, the Legislature has
unmistakably authorized the imposition of separate penalties for each
prohibited act even though they may be part of a continuous course of conduct
and have the same objective. . . .
[E]ach false filing is separately punishable." (Gangemi,
at p. 1800.)
DISPOSITION
The
judgment is affirmed
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
Patricia
M. Murphy, Judge
Superior Court County of
Ventura
______________________________
Christina
Alvarez Barnes, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel,
Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney
General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless
otherwise stated.
name="_ftn2" title="">[2] His sentence includes the following consecutive terms
and enhancements: an upper three-year
term for making false financial statements, with two-year excess taking and
five-year aggravated white collar crime enhancements; an eight-month term for
theft, with an eight-month excess taking enhancement; an eight-month term for
money laundering, with a one-year excessive value enhancement; and one
eight-month term for each of three section 115, subdivision (a) offenses. (Each eight-month term is one-third of a
two-year middle term.)
