People v. Mendiburu CA4/1 ( 2016 )

Filed 2/2/16 P. v. Mendiburu 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068479
Plaintiff and Respondent,
v. (Super. Ct. No. SICRF110052197)
JOSEPH CHARLES MENDIBURU,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Inyo County, Brian J. Lamb
and Randall D. White, Judges. Affirmed in part and reversed in part.
Law Offices of Mark Pachowicz and Mark R. Pachowicz 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.
A jury convicted defendant Joseph Mendiburu of grand theft of personal property
with an aggregate value in excess of $950 (Pen. Code § 487, subd. (a),1 count 1), felony
theft of cattle (former § 487, subd. (d)(1), count 3), felony theft of a truck (§ 487, subd.
(d)(1), count 4), and perjury (§ 118, count 5). Mendiburu was sentenced to a total term of
52 months in custody.2
On appeal, Mendiburu asserts his convictions on counts 1 and 3 must be reversed
because California's jurisdictional authority over those counts was an issue that should
have been submitted to and decided by the jury, and alternatively asserts the jurisdictional
determination was unsupported by substantial evidence. He also asserts all of the
convictions must be reversed because (1) three exhibits were erroneously admitted at
trial, (2) evidence of "prior bad acts" was erroneously admitted at trial, and (3) there were
numerous instructions required sua sponte to be given but omitted. He also asserts we
must reverse the order denying his new trial motion because it was not heard by the same
judge who presided over his trial, and because the judge who heard the motion applied
the incorrect standards. He also asserts there were errors during the sentencing phase of
the trial.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 The court selected the conviction on count 5 as the principle term and imposed the
midterm of 36 months on that conviction. The court imposed subordinate terms of eight
months each for the convictions on counts 3 and 4, and ordered those to run consecutive
to the term imposed on count 5. The court also imposed a subordinate term of eight
months for the conviction on count 1, but stayed that sentence pursuant to section 654.
2
I
FACTS
A. The Relationships
Mendiburu's father, George, died intestate and unmarried in December 2008.
George's three children, Mendiburu and his sisters Danielle and Nicole, initially were the
administrators of George's estate and were responsible for administering the estate's
assets, which included Flying M Cattle Company, a corporation (FMC) which owned and
operated the Flying M Cattle Ranch (the Ranch) located in California.
In February 2009 the three siblings as administrators became the officers and
directors for FMC. However, in October 2009 Mendiburu resigned as an administrator of
George's estate and also "stepped down" from his role as a board member and officer for
FMC. Thereafter, only the two sisters were administrators of the estate and board
members and officers of FMC. At that time, the sisters decided to hire Mendiburu as
manager for the Ranch, because he was familiar with its operations and they did not live
near the Ranch. They also established a new bank account for FMC that only the two
sisters could access, and Mendiburu was not permitted to handle or access any of FMC's
finances or to obtain access to the bank account. Mendiburu was not authorized to sell
any of the cattle from the Ranch without prior approval of the sisters, and was instructed
that any monies he happened to come into possession of during his management of the
Ranch was to be sent promptly to a Bakersfield, California mailing address accessible by
the sisters. In short, Mendiburu was not permitted to "have anything to do with the
money anymore."
3
B. Counts 1 and 3 (Grand Theft and Grand Theft-Cattle)
The prosecution's theory was that, in November 2009, Mendiburu stole assets of
the Ranch by taking cattle from the Ranch in California and selling them without
permission in Nevada, and ultimately keeping the funds from the sale, which he lost at a
casino in Nevada.
Before cattle may be transported from a ranch and sold at auction, they must be
inspected by a brand inspector and the inspector must issue an inspection certificate
authorizing the transfer. In November 2009, Mendiburu contacted a brand inspector to
come to the Ranch to conduct the inspection required to transfer and sell the cattle. The
inspector inspected 83 head of cattle belonging to the Ranch, as well as another 8 head
belonging to Mendiburu, and issued the certificate authorizing the transfer of the cattle to
an auction house in Nevada for sale. The Nevada auction house received the cattle,
listing Mendiburu as consignor, and sold consigned Ranch cattle on November 18, 2009.
The Nevada auction house issued a check, payable to Flying M Ranch, for $34,221.44,
representing the net proceeds for the sale of the Ranch's cattle.3 However, the auction
house mistakenly sent that check to another ranch (also named "Flying M.") with which
the auction house also did business. A few weeks after the sale, that mistake was
discovered and Mendiburu went to the Nevada auction house, at which time the Nevada
auction house handed Mendiburu a new check (again made out to the Flying M Ranch)
for $34,221.44.
3 The auction house also sent a check to Mendiburu for the net proceeds from the
sale of his cattle.
4
Mendiburu then tried to cash the check at a Nevada bank, which was unable to
cash the check because it was made out to a business. However, the bank was able to
convert the check into cashier's checks (which are as good as cash) made payable to the
Ranch but specifying Mendiburu as "remitter." That same day, Mendiburu took those
cashier's checks to a casino in Nevada, cashed them at the Nevada casino, and ultimately
gambled away the proceeds.
Mendiburu was required to obtain his sisters' permission to sell Ranch's cattle, but
did not obtain their permission (or even tell them) of the November sale or that he
obtained the funds from that sale. By March 2010, the sisters had hired a private
investigator because of their concern over Mendiburu's activities at the Ranch, and it was
after they hired the investigator that they learned of the November sale and what
Mendiburu did with the proceeds. In May 2010, the sisters met with Mendiburu and
confronted him with the evidence obtained by the private investigator concerning the
cattle sale and disposition of the proceeds. After he admitted he had taken the money but
adopted a cavalier attitude, the sisters fired him as manager.
C. Counts 4 and 5 (Theft of Truck and Fraud)
At the time of Father's death in 2008, he owned a Toyota truck. In May 2009,
when Mendiburu was still one of the co-administrators of his estate, he went to the
California Department of Motor Vehicles (DMV) and completed a form titled "Affidavit
for Transfer without Probate." In that document, he averred under penalty of perjury that
he was the "sole person" who succeeded to Father's property and, based on that affidavit,
5
he obtained title to the Toyota in his own name. None of the individual administrators of
the estate were authorized to take any item from the estate as their personal property.
II
THE ALLEGED JURISDICTIONAL ERRORS
Mendiburu argues his convictions on counts 1 and 3 must be reversed because
California's jurisdictional authority over those counts was an issue that should have been
submitted to and decided by the jury. He argues the court erred in not sua sponte
instructing the jury that it had to determine, beyond a reasonable doubt, the geographical
location at which Mendiburu formed the specific intent to steal the cattle and the
proceeds from the cattle sale to invest the California court with jurisdiction over the
offenses charged against him. He alternatively argues that, even if jurisdictional elements
are not a jury question, the court erred when it did not determine the issue in connection
with his motion to dismiss.
A. Applicable Principles
California's statutory law governing territorial jurisdiction in criminal cases, found
in sections 27 and 778, provides in relevant part that "persons are liable to punishment
under the laws of this state: [¶] . . . who commit, in whole or in part, any crime within this
state" (§ 27, subd. (a)(1)), and also specifies that "[w]henever a person, with intent to
commit a crime, does any act within this state in execution or part execution of that
intent, which culminates in the commission of a crime, either within or without this state,
the person is punishable for that crime in this state in the same manner as if the crime had
been committed entirely within this state" (§ 778a, subd. (a)). Our Supreme Court has
6
explained that, under the provisions of section 778a, subdivision (a), "California has
territorial jurisdiction over an offense if the defendant, with the requisite intent, does a
preparatory act in California that is more than a de minimis act toward the eventual
completion of the offense." (People v. Betts (2005) 34 Cal.4th 1039, 1047 (Betts).)
B. Proceedings at Trial
Prior to trial, Mendiburu moved to set aside the information under section 995,
arguing the evidence adduced at the preliminary hearing did not support the exercise of
territorial jurisdiction over counts 1 and 3 because there was no evidence that Mendiburu
committed any acts in California in preparation for the alleged thefts of the cattle and the
proceeds of the sale. The prosecution opposed the motion, noting that on a motion to set
aside an information, " 'the question of guilt or innocence of the defendant is not before
the court, nor does the issue concern the quantum of evidence necessary to sustain a
judgment of conviction. The court is only to determine whether the magistrate, acting as
a man of ordinary caution or prudence, could conscientiously entertain a reasonable
suspicion that a public offense has been committed in which the defendant had
participated.' " (People v. Ross (1972) 25 Cal.App.3d 190, 195.) As long as there is
some evidence to support the information (including drawing every reasonable inference
from the evidence in favor of the information), the court should deny a section 995
motion. (People v. Velasquez (1975) 53 Cal.App.3d 547, 553.) The People argued the
evidence—that Mendiburu moved cattle from the Ranch and then converted the proceeds
from the sale to his personal use without authority to do so—was adequate to provide a
reasonable suspicion that his preparatory acts in California (more than de minimis acts)
7
were part of his planned theft, and therefore California could exercise territorial
jurisdiction over the charged offenses. The trial court denied Mendiburu's motion to set
aside the information "[f]or the reasons set forth in the People's . . . [o]pposition."
C. The Jurisdictional Issue Is Not a Jury Question
Mendiburu argues that, under a series of pre-Betts cases,4 it was error not to
submit the issue of jurisdiction to the jury for its determination of whether or not the
charged crimes were committed, in whole or in part, within California. He notes the
Betts court recognized that "[n]one of [the jurisdictional] statutes . . . addresses the
question of whether the issue of territorial jurisdiction in a criminal proceeding should be
determined by the trial court or by a jury. Section 27, like sections 777b through 778b, is
silent on this matter. Nor has our court ever directly addressed the question. In a number
of cases, we have discussed issues related to territorial jurisdiction in the context of a jury
trial and assumed that the issue properly could be presented to the jury, but those
decisions have not directly confronted the question whether a jury trial is required."
(Betts, supra, 34 Cal.4th 1047-1048.) However, the specific argument was then resolved
in Betts, when it determined that, although the "courts of other states are divided on the
question whether the determination of territorial jurisdiction in a criminal case is for the
jury or the trial court" (id. at p. 1051), some jurisdictions "have concluded that the court,
not the jury, decides whether territorial jurisdiction has been established in a criminal
4 Mendiburu cites People v. Anderson (1961) 55 Cal.2d 655, People v. Chapman
(1977) 72 Cal.App.3d 6, and People v. Marvin (1941) 48 Cal.App.2d 180, to support his
claim that he was entitled to have the jury decide the issue of jurisdiction.
8
case" (ibid.), and California would adopt that approach because territorial jurisdiction,
although involving questions of fact, "is a procedural issue that does not determine the
guilt or innocence of the accused. Therefore, the reasoning we applied in [People v.
Posey (2004) 32 Cal.4th 193] suggests that the trial court, rather than a jury, should
decide the issue of territorial jurisdiction." (Betts, at p. 1049.) Moreover, the Betts court
explained, "[b]ecause territorial jurisdiction is a procedural matter that relates to the
authority of California courts to adjudicate the case and not to the guilt of the accused or
the limit of authorized punishment, a jury trial on the factual questions that establish
jurisdiction is not required by the federal Constitution" (id. at p. 1054), the defendant is
not entitled to a jury determination of territorial jurisdiction under the California
Constitution. (Id. at p. 1054, fn. 10.)
After Betts, the predicate question of territorial jurisdiction is for the trial court
rather than the jury. We reject Mendiburu's claim that he was entitled to a jury trial on
whether California had jurisdiction to prosecute him for the charged offenses.
D. Substantial Evidence Supported the Jurisdictional Determination5
Mendiburu alternatively argues there was no evidence to support the trial court's
determination that California could exercise jurisdiction over the charges contained in
5 Mendiburu peremptorily suggests the court never determined the issue of
jurisdiction. However, the entire focus of Mendiburu's section 995 motion, and the
People's opposition to that motion, was whether there was adequate evidence to show
California had a proper basis for exercising jurisdiction over counts 1 and 3. Because the
trial court's denial of Mendiburu's motion challenging the exercise of jurisdiction
resolved the issues adversely to Mendiburu's claims, the trial court impliedly found a
preponderance of the evidence supported the exercise of jurisdiction.
9
counts 1 and 3 because there was no evidence from which the trial court could have
found he possessed the requisite criminal intent when he arranged to ship the cattle from
California in November.
Because California has territorial jurisdiction if the defendant, "with the requisite
intent, does a preparatory act in California that is more than a de minimis act toward the
eventual completion of the offense" (Betts, supra, 34 Cal.4th at p. 1047), and Mendiburu
does not dispute the evidence of his actions in California (of arranging for the cattle to be
shipped out of state) amply satisfies the actus reas for territorial jurisdiction of a "de
minimis act toward the eventual completion of the offense" (ibid.), his challenge to
territorial jurisdiction rests solely on his claim there was no substantial evidence of his
mens rea at the time of the shipment. However, the courts have long recognized that the
issue of an actor's specific intent may, "and usually must be, inferred from circumstantial
evidence." (People v. Cole (1985) 165 Cal.App.3d 41, 48.) In the analogous context of
whether the evidence was sufficient to support a conviction for an offense requiring
specific intent, the Cole court explained that " '[w]hen a specific intent is an element of
the offense it presents a question of fact which must be proved like any other fact in the
case. It is none the less a question of fact though it cannot be proved by direct and
positive evidence. All the circumstances surrounding the act furnish the evidence from
which the presence or absence of the specific intent may be inferred by the jury . . . .'
[Quoting People v. Maciel (1925) 71 Cal.App. 213, 218-219.] [¶] . . . . [¶] . . . '[E]ven
though the appellate court may itself believe that the circumstantial evidence might be
reasonably reconciled with the defendant's innocence, this alone does not warrant
10
interference with the determination of the trier of fact. [Citations.] Whether the evidence
presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains
whether any reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.' [Quoting People v. Towler (1982) 31 Cal.3d 105, 118.]" (Cole, at
pp. 48-49.)
That same approach is applied to trial court determinations of territorial
jurisdiction. In Betts, the defendant contended the evidence was insufficient to support
the trial court's conclusion that California had territorial jurisdiction over the offenses
occurring outside of California because there was no evidence he intended to molest the
victims when he drove them away from California into other states. (Betts, supra, 34
Cal.4th at p. 1055.) Betts, after reiterating that a defendant may be prosecuted in a
California court if the defendant, with the intent to commit a crime, did any act within
this state in execution or part execution of that intent, stated that the "prosecution has the
burden of proving the facts necessary to establish territorial jurisdiction by a
preponderance of the evidence." (Ibid.) Betts then discussed why the defendant's claim
there as to the insufficiency of the evidence to support territorial jurisdiction was
unpersuasive, noting an appellate court must uphold a trial court's determination on
factual issues if supported by substantial evidence, and then explaining why the
circumstantial evidence and inferences therefrom supported the determination he
possessed the requisite intent when he performed the acts in California. (Id. at pp. 1055-
1056.)
11
Here, there was evidence to support the inference that Mendiburu possessed the
requisite intent at the time he arranged to transport the cattle.6 First, he knew he had no
authority to sell cattle without prior approval of the sisters, but he nevertheless arranged
for an inspection in and shipment from California while keeping his actions secret from
the sisters. Moreover, any proceeds from cattle sales were supposed to be deposited into
a bank account established in October 2009 for the Ranch, over which Mendiburu had no
control or authority, but the sales proceeds were not directed to that account, and there
was no evidence Mendiburu directed the auction house to send the funds to that account.
Finally, there was some evidence Mendiburu had previously misappropriated Ranch
assets, which supported an inference that he did not form the intent to again
misappropriate funds only after crossing into Nevada. (Betts, supra, 34 Cal.4th at
pp. 1055-1056 ["Defendant's past acts of child molestation also support the inference that
6 Mendiburu's contrary argument rests on his claim that, because there was
circumstantial evidence supporting a conclusion he formed the requisite intent only after
he picked up the check in Nevada, and a jury is instructed that when two or more
reasonable conclusions can be drawn from circumstantial evidence regarding a
defendant's intent the jury must adopt the inference of an innocent intent, the inference
must be drawn that he lacked the requisite intent until after he entered Nevada. This
argument misconstrues the standard of appellate review. "Although it is the duty of the
jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court [that] must be convinced of the defendant's guilt beyond a
reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the
opinion of the reviewing court that the circumstances might also be reasonably reconciled
with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean
(1988) 46 Cal.3d 919, 932-933.)
12
the idea of molesting Nichole did not first come to his mind after they had left the
state."].)
III
THE ALLEGED EVIDENTIARY ERRORS
Mendiburu contends the trial court erroneously admitted certain exhibits at trial,
and permitted evidence of Mendiburu's prior bad acts, and these errors were prejudicial.
We examine each claim of error pertaining to the specific exhibits and testimony
admitted at trial.
A. Exhibit 24A
The prosecution sought to admit into evidence a document, entitled
"Acknowledgement And Agreement By Heirs To Acts, Accounting, And Other Matters
Relating To The Administration Of The Estate Of George L Mendiburu" (the
Agreement). Ultimately, the trial court ruled a redacted version of the Agreement would
be admitted into evidence as Exhibit 24A. Mendiburu argues this ruling was error
because (1) it was irrelevant, (2) it was inadmissible under Evidence Code section 1101
and its admission violated an earlier in limine ruling excluding evidence of Mendiburu's
"prior bad acts," (3) it was inadmissible under Evidence Code section 1152, and (4) it
was error to rely on Evidence Code section 356 to admit the entire document.
Background
The Agreement
In January 2010, Mendiburu and his sisters signed the Agreement, which had an
effective date of September 1, 2009, and contained certain recitals, including that in
13
October 2009 the sisters learned Mendiburu had misappropriated approximately $85,000,
and that in October 2009 Mendiburu resigned as an administrator of the estate and also
from his position as an officer and director of FMC, the corporate entity that owned and
operated the Ranch. As part of the agreement, the parties agreed to treat the amounts
misappropriated (as well as the salary he was paid between April and October 2009) as a
"Loan" from FMC to Mendiburu, and agreed Mendiburu would be hired as an at-will
employee of FMC. The prosecution subsequently sought, and obtained, leave to
introduce a redacted version of the Agreement.
The Prior in Limine Motion
Prior to trial, Mendiburu moved in limine to exclude the sisters from referring to
their beliefs that Mendiburu engaged in the use of controlled substances, had a gambling
problem, or diverted other funds from the Ranch for his personal use. The People argued
that, although Mendiburu's prior bad acts were inadmissible to show his propensity to
steal from the Ranch, Mendiburu's prior bad acts were admissible because his use of
controlled substances and/or gambling problem was relevant to his motive to steal from
FMC and his prior misappropriations showed a common scheme or plan to feed his
gambling and drug habits using corporate money. After an extended discussion, during
which the court expressed concern over how the prosecution could lay an adequate
foundation for the evidence proving Mendiburu's alleged gambling habits and alleged
prior thefts, the court granted the motion to preclude evidence of Mendiburu's prior bad
acts, but cautioned it could "revisit this later" if the prosecution sought to put on such
14
evidence "because I'm still a little unclear about how it would come in . . . so we may
revisit that if and when the time comes to do that."
Objections to and Admission of Exhibit 24A
During Danielle's testimony about the sisters' concerns over Mendiburu's
administration of the Ranch and the changes in Mendiburu's powers and responsibilities
with the Ranch in November 2009, the People showed Exhibit 24 to Danielle and asked if
a paragraph of that document addressed Mendiburu's position with the Ranch starting
November 1, 2009. Mendiburu interposed a hearsay objection to the contents of the
document, and the People initially argued it was admissible under the business records
exception. The court observed that, because Mendiburu signed the document, it could be
admissible under the admissions exception to the hearsay rule, and Mendiburu stated that
it "[a]rguably . . . might be" but that it was still inadmissible under Evidence Code
sections 1152 and 1154. The court overruled that objection, but invited other argument
on the admissions exception. The prosecutor clarified that it was seeking admission of
the exhibit for the purpose of showing Mendiburu agreed to his position with FMC (as
well as the accompanying salary and benefits) and "not . . . for the entire document," and
the defense stated it would not object to a redacted version of the document if that was
the sole purpose for its admission. However, after additional discussion on whether only
certain portions of the Agreement would be admitted, the court determined under
Evidence Code section 356 it was necessary that the entirety of the agreement be
admitted, and it was admissible under the party admissions exception to the hearsay rule.
15
Although the court allowed the prosecutor to continue using the entirety of the
Agreement in his subsequent questioning of Danielle as a result of that ruling, the
document was subsequently redacted in reaction to the parties' subsequent discussion
about admitting the Agreement into evidence. At that time, the defense resurrected its
objection under Evidence Code section 1101 to those recitals in the document that
described the fact and amount of Mendiburu's prior misappropriations, arguing it was
inadmissible as "prior bad acts." The prosecution asserted the clauses, by describing that
the sisters had stripped Mendiburu of authority over Ranch property because of his prior
misappropriations, was relevant to preempt any claim by Mendiburu that he might have
believed he had a right to dispose of Ranch property, and the probative value of that
evidence outweighed any prejudicial impact of such evidence. The court agreed and,
after redacting references to the amount of Mendiburu's prior misappropriation to create
Exhibit 24A, permitted the prosecution to introduce that exhibit.
Analysis
The Relevance Claim
Mendiburu first argues admission of Exhibit 24A was error because it was
irrelevant. However, Mendiburu cites nothing suggesting he raised that objection below,
and he cannot obtain reversal on that ground. (People v. Visciotti (1992) 2 Cal.4th 1, 51-
52.) Moreover, even were it preserved, the evidence was relevant. Evidence is relevant
when it has "any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action." (Evid. Code § 210.) The test is whether
or not the evidence tends logically, naturally, and by reasonable inference to establish any
16
fact material for the prosecution, or to overcome any material matter sought to be proved
by the defense. (People v. Freeman (1994) 8 Cal.4th 450, 491.) The document provided
support for the sisters' testimony that Mendiburu in fact did not have authority to sell the
cattle, and could provide factual support that preempted a claim Mendiburu believed he
was entitled to convert the cattle to his personal benefit. We conclude the evidence was
relevant.
The Evidence Code Section 1101 Claim
Mendiburu primarily asserts the court abused its discretion when it concluded the
evidence was not inadmissible under Evidence Code section 1101, subdivision (a). That
provision generally prohibits the admission of a prior criminal act against a criminal
defendant when it is "offered to prove his or her conduct on a specified occasion."
However, subdivision (b) of the statute provides that such evidence is admissible "when
relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident . . .) other than his or her disposition
to commit such an act." (Evid. Code, § 1101, subd. (b).) "Moreover, to be admissible,
such evidence ' " 'must not contravene other policies limiting admission, such as those
contained in Evidence Code section 352.' " ' [(People v. Lewis (2001) 25 Cal.4th 610,
637; [citation].)] Under Evidence Code section 352, the probative value of the proffered
evidence must not be substantially outweighed by the probability that its admission
would create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury. [Citations.] [¶] We review for abuse of discretion a trial court's
17
rulings on relevance and admission or exclusion of evidence under Evidence Code
sections 1101 and 352." (People v. Cole (2004) 33 Cal.4th 1158, 1194-1195.)
Mendiburu asserts Exhibit 24A was barred because it referenced his prior
misappropriations. However, the prosecutor explained it was offered for the
nonprohibited purposes of showing he understood and agreed to substantial limitations on
his powers (and on his salary and benefits), and to show he was aware of those
limitations, therefore undermining any "claim of right" defense. These facts, in addition
to being relevant to buttressing the credibility of the sisters' testimony (and to obviating
any claim the sisters were merely acting vindictively toward Mendiburu in testifying he
improperly converted estate property), provided evidence relevant to Mendiburu's
"knowledge" and/or "absence of mistake" as to his ability to sell the cattle and convert the
proceeds. (Cf. People v. Tufunga (1999) 21 Cal.4th 935, 945-948 [good faith claim of
right to title or ownership of specific property taken can negate the element of felonious
taking necessary to establish theft].)
Because the evidence was admissible under Evidence Code section 1101,
subdivision (b), for these nonprohibited purposes, the issue is whether the court abused
its discretion when it concluded the probative value of the evidence for those
nonprohibited purposes was outweighed by its prejudicial impact. Mendiburu does not
argue on appeal why or how the admission was an abuse of the trial court's discretion
under Evidence Code section 352, but instead asserts the trial court never engaged in the
weighing process envisioned by that section. However, as long as the record as a whole
supports the inference that the court understood and performed its obligations, "[a] trial
18
court ' "need not expressly weigh prejudice against probative value—or even expressly
state that [it] has done so . . . ." ' [Quoting People v. Waidla (2000) 22 Cal.4th 690, 724,
fn. 6.]" (People v. Mendoza (2000) 24 Cal.4th 130, 178.) Here, the prosecutor expressly
argued why the probative value of Exhibit 24A outweighed its prejudicial impact, and the
defense interposed its argument on that issue, after which the judge ruled the exhibit
would be admitted. Nothing further was required. (Mendoza, at p. 178.)
The Evidence Code Section 1152 Claim
Mendiburu argues admission of Exhibit 24A was barred by Evidence Code section
1152, subdivision (a), which provides:
"Evidence that a person has, in compromise or from humanitarian
motives, furnished or offered or promised to furnish money or any
other thing, act, or service to another who has sustained or will
sustain or claims that he or she has sustained or will sustain loss or
damage, as well as any conduct or statements made in negotiation
thereof, is inadmissible to prove his or her liability for the loss or
damage or any part of it."
However, Evidence Code section 1152 ordinarily has no application in criminal
cases. (People v. Muniz (1989) 213 Cal.App.3d 1508, 1515.) Moreover, even were the
statute applicable, "evidence of efforts to compromise are not admissible [citation] except
to the extent that they contain admissions against interest or evidence otherwise
admissible." (Store of Happiness v. Carmona & Allen (1957) 152 Cal.App.2d 266, 273,
italics added.) As previously explained, Exhibit 24A was not admitted for the purposes
barred by Evidence Code section 1152 (i.e. to prove Mendiburu was liable for his prior
misappropriations) but instead contained evidence admissible on other issues (i.e., his
actual authority over Ranch property and whether he subjectively understood those
19
limitations). Accordingly, Evidence Code section 1152 did not bar admission of Exhibit
24A.
B. Exhibit 26
Mendiburu next argues a letter written by Nicole to Mendiburu in May 2010,
introduced as Exhibit 26, was improperly admitted. He objected at trial to admission of
Exhibit 26 on the grounds it contained implied references to prior bad acts in violation of
Evidence Code section 1101, and its prejudicial impact outweighed any probative value
under Evidence Code section 352, and argues on appeal the court's ruling admitting
Exhibit 26 was an abuse of discretion.7
Background
Nicole testified that, at the meeting in May when they fired Mendiburu after
confronting him about his diversion of the proceeds he gambled away, the sisters also
told Mendiburu about an offer to buy the Ranch and discussed the division of the
proceeds. Although Mendiburu initially refused to consider the offer, he later indicated a
willingness to consider it. Nicole testified she "was hoping that he would take it, leave
the ranch, take the offer, and go get help." The prosecutor then showed Nicole a letter
she wrote to Mendiburu the following day, ultimately introduced as Exhibit 26, that
included (on the first page) a discussion that the sisters would "allow you to take your
truck with you (we need to transfer truck from [Ranch] to you ASAP)." Nicole was
7 Mendiburu also argues Exhibit 26 was hearsay. However, he did not object at trial
on that ground, and that claim of error is therefore waived. (People v. Wheeler (1992) 4
Cal.4th 284, 300 ["defendant waived any hearsay claim by making no trial objection on
that specific ground"].)
20
asked to which truck they were referring, and she explained it was a Ford flatbed truck,
not the Toyota truck. She stated she was hopeful that, by selling the ranch and giving
him the Ford truck, it would "solve this big mess," and she twice stated she hoped this
solution would allow him to "go get help." She also later stated she delayed meeting with
the sheriff's department for a month after the meeting because "I wanted him to go get
help. I didn't want to turn him in." Nicole's direct testimony contained no express
references to either Mendiburu's alleged substance abuse problems or the sisters' belief
that he had a gambling problem.
On cross-examination, the defense questioned Nicole about the offer in the letter
to let him keep the truck, and she responded the offer was "contingent upon him leaving
the ranch, accepting the offer, and hopefully going into rehab," but defense counsel then
asked "[t]hat was not stated in the letter, though, was it?" She responded that she had
"talked to him about rehab in that [letter] [s]o, yes, that whole context of him taking the
flatbed was about him getting help and taking the offer." Defense counsel again sought
confirmation from Nicole that the language she used in the letter regarding him keeping
the truck did not specify it was "contingent on accepting the offer," and she answered
"[t]hat sentence was not but if you take in the whole letter, you'll see how I'm talking
about . . . get[ting] a fresh start, go to rehab, help yourself, leave the ranch . . . . You have
a vehicle to leave the ranch and go get help for yourself."
During the discussion about admitting the exhibits, defense counsel had no
objection to the first page of the letter being admitted. However, the defense objected to
the second page because, even though there was "some limited testimony about" the
21
second page, the defense argued it was "unduly prejudicial." The prosecutor responded
that the defense had "on cross elicited testimony" about the portion of the letter on page
two in which Nicole stated she hoped Mendiburu would "check yourself into a good 90
day rehab to help yourself . . . [¶] . . . and get healthy," and therefore the entire letter
should be admitted. The defense responded that, although Nicole's wish that Mendiburu
enter "rehab" was in evidence, the fact the letter referred to a "90 day" rehab and
"checking yourself in and getting healthy" was unduly prejudicial and its admission
would conflict with the court's in limine ruling barring evidence of Mendiburu's prior bad
acts. The court ruled it was not unduly prejudicial under Evidence Code section 352 to
admit the entire letter and ruled the entire letter would be admitted.
Analysis
Mendiburu argues on appeal the court's ruling admitting the second page of
Exhibit 26 was an abuse of discretion. He suggests the letter, by referring to Nicole's
wish that Mendiburu "check yourself into a good 90 day rehab . . . and get healthy,"
violated Evidence Code section 1101, subdivision (a)'s proscription against the
introduction of evidence of Mendiburu's "character or a trait of his . . . character . . . to
prove his . . . conduct on a specified occasion," and its prejudicial impact outweighed its
probative value. However, the letter was probative on whether the sisters were acting
vindictively toward Mendiburu or whether they were instead concerned for his welfare,
which was relevant to their credibility. Additionally, because the defense's questions to
Nicole about the letter sought to prove Mendiburu was permitted to take a truck from the
Ranch without conditions, while Nicole testified the entirety of the letter showed
22
Mendiburu was permitted to take a truck from the Ranch as part of the overall effort to
sell the Ranch and move forward, the entirety of the letter was proper matter for the jury
to consider. (Cf. Evid. Code, § 356.)
We are unconvinced by Mendiburu's claim that the trial court abused its discretion
in concluding the letter's prejudicial impact did not outweigh its probative value.
Although the letter twice referred to the sisters' hope Mendiburu would check into
"rehab," that was not evidence of which the jury was unaware, nor did it inform the jury
(as argued by Mendiburu on appeal) that his gambling problem (information already in
evidence) was accompanied by a drug abuse problem. Under these circumstances, it was
not an abuse of the trial court's discretion to admit the entirety of Exhibit 26.
C. Exhibit 22
Mendiburu asserts the court erred in permitting the introduction of a set of
documents, obtained from the DMV, which showed how registered title to the Toyota
truck was transferred to Mendiburu, as Exhibit 22. The fourth page is a completed form
titled "Affidavit for Transfer without Probate" (the Affidavit), in which Mendiburu
averred under penalty of perjury that he was the "sole person" who succeeded to Father's
property.8 At trial, the defense specified it was not objecting to the foundation for the
document, but was instead objecting that it was hearsay that did not qualify for admission
under Evidence Code section 1280 because there was no foundational showing the
8 At trial, Danielle identified the writing on the Affidavit as Mendiburu's
handwriting and the signature on the Affidavit, made under penalty of perjury, as
Mendiburu's signature.
23
contents of the Affidavit qualified as an official record (within the meaning of Evid.
Code, § 1280) as a writing made "by and within the scope of a duty by a public
employee." The court admitted the document because the disputed Affidavit was
admissible "under the operative act doctrine."
Legal Framework
The court in In re Shannon C. (1986) 179 Cal.App.3d 334, 341-342, explained the
different focuses of Evidence Code sections 1530 and 1280:
"Section 1530 is found in chapter 2 of division 11 of the Evidence
Code concerned with 'Secondary Evidence of Writings.' Section
1530 codifies an exception (for public records) to the best evidence
rule, which ordinarily requires that an original writing be admitted to
prove the content of a writing (§ 1500). [¶] 'Section 1530 of the
Evidence Code is concerned with the use of a copy of a writing in
official custody to prove the content of the original.' [Citation.]
Section 1530 does not allow either the original or the copy of the
writing to be used to prove the truth of the matter asserted in the
content of the writing. 'It is to be noted that [Evidence Code sections
1530 and 1452 through 1453] provide the means of authenticating
the existence and content of an original writing in the custody of a
public entity and of authenticating the copy proffered in evidence as
a true copy of the original. The admissibility of the original writing
in possession of the public entity must be based on some exception to
the hearsay rule such as the admission of a party [(Evidence Code
section 1220)] or the exception for entries in official or public
records [(Evidence Code section 1280)].' [Quoting 1 Jefferson, Cal.
Evidence Benchbook (2d ed. 1982) § 5.1, p. 250, italics added by
Shannon court.]"
The interplay between Evidence Code section 1530 and the hearsay rules provides
a two-step process for admitting documents held by entities like the DMV. Evidence
Code section 1530 merely specifies the methodology for establishing the foundation for
admitting a copy of what is in the public records, thereby satisfying the first step of
24
allowing a copy to be admitted, but Evidence Code section 1530 does not speak to the
second step of the analysis, which is whether the content of that writing is admissible to
prove the truth of the matters asserted in that writing. That second step requires either
that the content be admissible hearsay (by qualifying for admission under some exception
to the hearsay rule) or because it is being admitted for a non-hearsay purpose. (See, e.g.,
People v. Harvey (1991) 233 Cal.App.3d 1206, 1220 ["hearsay is a two-pronged inquiry.
In order to constitute hearsay, a statement must be received as proof of the truth of the
matter stated. If the statement is received as proof of something other than the truth of
the statement itself, it is not hearsay."].)
Analysis
The court correctly ruled the Affidavit was admissible. Mendiburu expressly
stated below that he was not challenging the first step—whether Evidence Code section
1530's methodology for establishing the foundation for admitting the copy of what was in
the public records had been satisfied. Instead, Mendiburu argued below there was no
showing any exception to the hearsay rule had been satisfied, and therefore the Affidavit
was inadmissible to prove the truth of the content of the Affidavit. However, the court
correctly noted the Affidavit was not introduced to prove the truth of its contents (i.e. that
Mendiburu was the "[s]ole person . . . who succeeded to the property of the decedent,")
but was admissible under the operative acts doctrine. This ruling was correct:
"Documents not offered for the truth of the matter asserted are, by
definition, not hearsay. Hearsay is defined . . . as 'evidence of a
statement that was made other than by a witness while testifying at
the hearing and that is offered to prove the truth of the matter stated.'
Where ' "the very fact in controversy is whether certain things were
25
said or done and not . . . whether these things were true or false, . . .
in these cases the words or acts are admissible not as hearsay[,] but
as original evidence." ' [(Quoting 1 Witkin, Cal. Evidence (4th ed.
2000) Hearsay, § 31, p. 714.)] For example, documents containing
operative facts, such as the words forming an agreement, are not
hearsay. [Citations.] The operative facts rule also applies in an
action for fraud. [(Citing 1 Witkin, supra, Hearsay, § 33, p. 715 ['In
an action for . . . deceit, the words spoken, written, or printed may be
proved']; [citation].)]" (Jazayeri v. Mao (2009) 174 Cal.App.4th
301, 316.)
Mendiburu was charged with perjury under section 118, which required proof of a
willful statement, under oath, of any material matter that the witness knows to be false.
Exhibit 22 comprised the "certifi[fication] under penalty of perjury" (§ 118, subd. (a)),
which allegedly violated the statute, and therefore its admission was permitted under the
operative acts doctrine.9
D. The Sisters' Testimony
Mendiburu argues the prosecution violated the in limine ruling, which had
provisionally precluded testimony about his alleged drug abuse, alleged gambling
problem, and his prior thefts, by eliciting testimony peripherally adverting to those
subjects. The trial court's ruling, although granting the motion to preclude evidence of
Mendiburu's prior bad acts, was subject to the proviso that the court could "revisit this
later" if the prosecution sought to put on such evidence, because the court was "still a
9 In his reply brief, Mendiburu asserts the operative acts doctrine did not apply
because, although Danielle testified the writing on the form was his, there was no
evidence he checked the box on the form containing the false statement. However, he
cites no authority suggesting that the Affidavit would or would not qualify for admission
into evidence under the operative acts doctrine depending on whether he signed that
document before or after the box was checked.
26
little unclear about how it would come in . . . so we may revisit that if and when the time
comes to do that."
In two of the passages Mendiburu asserts violated the ruling, however, the court
sustained objections (and ordered stricken) two statements by Danielle that were not
responsive to the prosecutor's questions.10 In many of the other passages Mendiburu
complains violated the ruling, the testimonial references were so oblique that they drew
no objection from the defense, which forfeits any claim of error. (People v. Hinton
(2006) 37 Cal.4th 839, 893.)
IV
THE ALLEGED INSTRUCTIONAL ERRORS
Mendiburu next asserts the trial court was sua sponte required to give (1) a
unanimity instruction regarding count 1, and (2) a mistake of fact and/or mistake of law
instruction.11
10 In one statement, the prosecutor asked about the May conversation between the
sisters and Mendiburu about the theft of the cattle, and Danielle began her response by
first stating the sisters wanted to make sure nothing was being taken and had hired a
private investigator, but her description of the background was cut off when the court
sustained the defense objection and ordered the testimony stricken. Shortly thereafter,
and again in response to the prosecutor's question about what Mendiburu said in that
meeting, Danielle said the sisters referenced the fact that they believed he had a gambling
problem, the court again sustained the defense objection and ordered the testimony
stricken.
11 Mendiburu also contends the trial court erred by not giving CALCRIM 1806,
which instructs that, if a defendant charged with embezzlement has a good faith belief he
acted with authorization, he is not guilty of the crime. However, that instruction was
given.
27
A. The Unanimity Claim
"In a criminal case, a jury verdict must be unanimous. [Citations.] . . .
Additionally, the jury must agree unanimously the defendant is guilty of a specific crime.
[Citation.] Therefore, cases have long held that when the evidence suggests more than
one discrete crime, either the prosecution must elect among the crimes or the court must
require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th
1124, 1132 (Russo).) The requirement of unanimity as to the criminal act "is intended to
eliminate the danger that the defendant will be convicted even though there is no single
offense which all the jurors agree the defendant committed." (People v. Sutherland
(1993) 17 Cal.App.4th 602, 612.) A court must give a unanimity instruction " 'when
conviction on a single count could be based on two or more discrete criminal events,' but
not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete
criminal event.' " (Russo, at p. 1135.) The court sua sponte must give the unanimity
instruction "where the evidence adduced at trial shows more than one act was committed
which could constitute the charged offense, and the prosecutor has not relied on any
single such act." (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)
Here, Mendiburu was charged in count 1 with "theft of personal property."
However, the evidence showed three potential criminal actions, separate in time and
place and manner, and the People do not contest on appeal that any one of these acts
would have supported the jury's conviction for stealing personal property as alleged in
count 1. Those distinct acts were Mendiburu's unauthorized taking of the cattle from the
Ranch in Inyo County sometime around mid-November 2009, his conversion of the
28
check to his own benefit a few weeks later in Nevada, and his transferring title to the
Toyota truck to his own name in May 2009 in California. Accordingly, a unanimity
instruction was required sua sponte unless the prosecution elected only one of those acts
as the basis for the charge. (Russo, supra, 25 Cal.4th at p. 1132.)
The record does not show the prosecutor clearly elected which criminal act formed
the basis for count 1. During closing argument, the prosecutor argued "[y]ou have got
three thefts: theft of a truck, theft of the cattle, and theft of property . . . . [¶] [Y]ou can
find theft under two different theories. You can find [Mendiburu] made a theft by
larceny or by embezzlement." When discussing the "larceny form" of theft, the
prosecutor noted one element was that Mendiburu moved the stolen property "even a
small distance and kept it for any time . . . however brief. Now, that's with regard to
Count 1. Well, actually, all the counts alleging theft." This argument provided no clear
election suggesting the prosecution was eschewing theft of the truck as the basis for
convicting Mendiburu on count 1. Moreover, the prosecutor also stated "with regard to
Count 1, which alleges theft [of] property from [the Ranch], you can look at it one of two
ways. That property could have been the cows or it could have been the money . . . .
You have to parse that out." This argument again provided no clear election suggesting
the prosecution was electing which taking provided the basis for convicting Mendiburu
on count 1.
Under these circumstances, where the evidence showed three potential criminal
acts (separated by time, place and manner) that could have formed the basis for the theft
alleged in count 1, it was error not to give a unanimity instruction. Moreover, the People
29
have made no effort on appeal to rebut Mendiburu's argument that the error was
reversible error under Russo because some jurors could have found Mendiburu guilty on
count 1 for one criminal act while others convicted him on count 1 for distinct acts. (See,
e.g., People v. Thompson (1995) 36 Cal.App.4th 843, 852-853 [failure to give a
unanimity instruction governed by harmless error standard under Chapman, and where
different acts by defendant diverting funds could have served as basis for theft
conviction, failure to give unanimity instruction is reversible error].) We reverse the
conviction on count 1.
B. The Mistake of Fact or Law Claim
Mendiburu argues the court sua sponte should have instructed the jury on mistake
of fact because there was substantial evidence to support the defense and it was not
inconsistent with his theory of the case. He asserts that because Exhibit 24A
recharacterized monies he had misappropriated prior to September 2009 as a "loan," and
included a promissory note committing Mendiburu to repay the estate for those funds,
there was evidence he mistakenly but in good faith believed he could take additional
estate assets that would merely be added to the principal amount of the loan, and
therefore the specific intent to deprive the estate of the assets was absent. However, the
court in People v. Lawson (2013) 215 Cal.App.4th 108 (Lawson) applied our Supreme
Court's analogous decision in People v. Anderson (2011) 51 Cal.4th 989, which held a
trial court has no sua sponte obligation to instruct on "accident" as negating the specific
intent element of an offense, to conclude a court likewise has no sua sponte obligation to
instruct on "mistake of fact" as negating a specific intent to steal. The Lawson court
30
observed that "as explained in Anderson, the trial court's sua sponte instructional duties
do not apply to defenses that serve only to negate the mental state element of the charged
offense when the jury is properly instructed on the mental state element, even when
substantial evidence supports the defense and it is consistent with the defendant's theory
of the case. [Citation.] In these circumstances, the court's duty to [instruct] 'extend[s] no
further than to provide an appropriate pinpoint instruction upon request by the defense.' "
(Lawson, supra, 215 Cal.App.4th at p. 119, italics added.) We agree with Lawson's
application of Anderson and conclude that a "mistake of fact" instruction, although
potentially available when there is evidence to support it and the defense requests it, is
not sua sponte required when the jury has already received proper instructions on the
mental state element required for the offense.
Mendiburu argues the court sua sponte should have also (or perhaps alternatively)
instructed the jury on "mistake of law" based on the same factual basis in the record. It is
oft stated that mistakes as to the law are " 'almost never a defense.' [Citation.] There are
rare instances where ignorance that a penal law prohibits one's conduct does provide a
defense. Those instances include crimes punishing the failure to act (rather than an
affirmative act) and certain conspiracies." (People v. Meneses (2008) 165 Cal.App.4th
1648, 1663.) Mendiburu cites nothing to suggest a "mistake of law" defense is even
available to any of the charged offenses, much less that mistake of law is a "general
principle[] of law that [is] commonly or closely and openly connected to the facts before
the court and that [is] necessary for the jury's understanding of the case" that it gave rise
here to a sua sponte instructional obligation. (People v. Montoya (1994) 7 Cal.4th 1027,
31
1047.) Of course, to the extent Mendiburu's argument for a "mistake of law" instruction
is merely a relabeling of his "mistake of fact" claim (see Meneses, at p. 1662 [the
"distinction between mistakes of fact and mistakes of law is an 'often difficult
distinction' "]), we reject his argument for the reasons outlined in Lawson, supra, 215
Cal.App.4th 108.
VI
THE SUBSTITUTE JUDGE CLAIMS
Mendiburu argues he was entitled to have the same judge who presided at trial
(Judge White) also rule on his new trial motion, and because the substituted judge who
actually ruled on his new trial motion did not have the familiarity with the witnesses
necessary to conduct an independent reweighing of the evidence, the order denying his
new trial motion was error. Mendiburu also argues he was entitled to have Judge White
determine his sentence, and the matter requires remand for resentencing before Judge
White.
A. Background
The jury returned its guilty verdicts on August 15, 2013, and Judge White
scheduled sentencing for October 22, 2013. Due to circumstances beyond Mendiburu's
control, on September 6, 2013, the court was required to relieve Mendiburu's trial
attorney as his defense counsel. The court, cognizant of the pending sentencing date and
the need to hear any new trial motions before sentencing, set a hearing for the next court
day (September 9, 2013) to appoint new counsel. At the next hearing, Mendiburu
expressed a wish to hire private counsel, and new counsel appeared for Mendiburu at a
32
September 18, 2013, hearing at which Mendiburu asked to continue the sentencing
hearing until December 2013 to provide new counsel adequate time to prepare a new trial
motion. At the subsequent status conference on October 2, 2013, at which time new
counsel for the People also appeared, the court granted Mendiburu a continuance of
sentencing until January 24, 2014, and indicated that, although the court would request
that Judge White be assigned to preside over that hearing, his availability was subject to
the discretion of the California Judicial Council.
At the January 24, 2014, hearing, the court heard Mendiburu's motion, filed in
mid-December 2013, seeking to continue the sentencing hearing on the grounds defense
counsel had been unable to timely obtain reporter's transcripts of the trial. The People,
although not opposing a continuance, asked to set sentencing as soon as feasible because
Mendiburu remained at liberty during this period of delay. The court informed the
parties that Judge White, a retired judge who resided in Palm Desert, California, but sat
by assignment on Mendiburu's trial, was "fully booked" until May 2014 and, moreover, it
was not economically feasible for him to return to Inyo County for a single matter. The
court found that, despite good faith efforts to secure him to preside over the posttrial
motions and sentencing, Judge White was unavailable in the near term and was reluctant
to serve on this single matter. Accordingly, the court as presiding judge ruled it would
exercise its power under Government Code section 69508 to assign itself to preside over
all further matters.
33
B. Legal Framework
The statutory scheme provides that, "If after the commencement of the trial of a
criminal action or proceeding in any court the judge or justice presiding at the trial shall
die, become ill, or for any other reason be unable to proceed with the trial, any other
judge or justice of the court in which the trial is proceeding may proceed with and finish
the trial . . . . The judge or justice authorized by this section to proceed with and
complete the trial shall have the same power, authority, and jurisdiction as if the trial had
been commenced before that judge or justice " (§ 1053, italics added.) Although it is
preferable for the judge who presided at the trial to hear the motion for a new trial
(People v. Norton (1956) 141 Cal.App.2d 790, 792), as well as to preside at the
sentencing hearing (People v. Jacobs (2007) 156 Cal.App.4th 728, 738), there is no
constitutional right (People v. Moreda (2004) 118 Cal.App.4th 507, 512-518 (Moreda))
or statutory right (People v. Norton, supra) to have the same judge preside over those
phases of the trial. Instead, there is no error when the trial judge is unavailable and a
different judge acts on the new trial motion (ibid.) or imposes sentence on the defendant
after a trial. (People v. Downer (1962) 57 Cal.2d 800, 816; People v. Cole (1960) 177
Cal.App.2d 458, 460.) We also note that Judge White, who presided at trial, is a retired
judge who does not reside in the County in which the trial took place, and he declined the
invitation to return to the trial location to entertain the new trial motion and conduct the
sentencing hearing. Under these circumstances the superior court has no authority to
require Judge White to conduct further proceedings in this case.
34
C. Analysis
The New Trial Motion Claim
Mendiburu argues it was error to have the new trial motion ruled on by anyone
other than Judge White because, quoting from Moreda, supra, 118 Cal.App.4th at page
514, "[c]ertainly, a judge's first-hand observations of the demeanor of a witness could be
useful when ruling on a motion for new trial." Essentially, Mendiburu argues a
substituted judge is incapable of conducting the assessment of the evidence required
when considering a new trial motion. Mendiburu's argument ignores that, immediately
following that quoted passage, the Moreda court then said at pages 514 to 515:
"However, since the court functions in a supervisory capacity and its
review must be limited to what the evidence shows, we believe that,
at least in most cases, a court can effectively rule on a motion for
new trial by reviewing the transcripts of the proceedings and thereby
determining whether the jury's verdict, and the weight of evidence
and credibility determinations upon which that verdict rests, are
supported by the evidence. Thus, we disagree that section 1181
implicitly confers on criminal defendants the right to demand or
expect that the judge who presided at trial also rule on his or her
post-trial challenge to the sufficiency of the evidence."
Here, the presiding judge, after exercising his power under Government Code
section 69508 to assign himself to hear Mendiburu's new trial motion and sentencing,
explicitly scheduled the hearing almost 60 days later "not only for the defense to prepare
a significant motion" but also because the court recognized it would "need an opportunity
to review the—at least the relevant portions of the trial transcript for purposes of both
informing me with respect to the merits of any motion for a new trial and for sentencing."
Thus, the court recognized that its role under Moreda contemplated a complete
35
familiarization with the record to make the appropriate determinations in connection with
Mendiburu's new trial motion, and Mendiburu does not provide any basis for assuming
the court did not fully comply with its obligations in connection with, or applied
inappropriate standards when ruling on, the new trial motion. We agree with Moreda's
assessment that the analogous decision by our Supreme Court in People v. Espinoza
(1992) 3 Cal.4th 806 is fatal to Mendiburu's claim that he was deprived of a full
consideration of his new trial motion by the change of judges. As Moreda observed:
"Espinoza was a murder case in which the court affirmed a death
judgment. The court held, among other things, that the defendant's
rights were not violated by the fact that a motion to modify the death
verdict was adjudicated by a judge who did not hear the entire guilt
phase trial. [Citation.] The judge who presided when the guilt phase
commenced became too ill to continue and a different judge was
appointed pursuant to section 1053. The defendant objected to the
midtrial substitution on several grounds including that the second
judge could not properly rule on the motion to modify the jury's
death verdict. [Citation.] The defendant expressly argued that,
because the second judge did not personally hear the testimony of a
crucial material witness, he could not possibly evaluate the witness's
credibility and thus 'could not fully exercise his independent
judgment of the evidence' for purposes of ruling on the motion.
[Citation.] The Espinoza court disagreed. It acknowledged that,
when ruling on a motion to modify a death judgment, the trial court
conducts an independent review of the evidence; the judge must
' "assess the credibility of the witnesses, determine the probative
force of the testimony, and weigh the evidence." ' Notwithstanding
this procedure, the Espinoza court rejected the defendant's
contention that 'the requisite assessment can be made only by a
judge who has personally heard the testimony presented at the guilt
phase of the trial.' [(Quoting Espinoza, supra, at p. 830.)] The
Espinoza court reasoned that the trial court was not to make an
'independent and de novo penalty determination.' Rather, the trial
court was required to make an independent judgment as to whether
the weight of the evidence supports the jury verdict. The court
rejected the contention that the second judge could not fully exercise
that independent judgment by reviewing the transcripts of the trial
36
proceedings that took place before his substitution. [Citation.] [¶]
The postverdict review conducted by the trial court in Espinoza is
comparable to the review that a trial court performs when ruling on a
motion for new trial challenging the sufficiency of the evidence. In
both contexts, the court undertakes an independent analysis, weighs
the evidence, and makes credibility determinations, but does not
substitute its own judgment for that of the jury. Thus, the Supreme
Court's holding in Espinoza applies in this context. It confirms our
conclusion that a judge who did not personally hear testimony at trial
may nevertheless make an adequate independent assessment of the
evidence in the record in order to determine whether the weight of
the evidence supports the jury's verdict." (Moreda, supra, 118
Cal.App.4th at pp. 517-518.)
We likewise conclude a judge who did not personally hear the trial testimony may
nevertheless make an adequate independent assessment of the evidence in the record to
determine, in connection with a new trial motion, whether the weight of the evidence
supports the jury's verdict. Mendiburu's argument of error in connection with the ruling
on his motion for new trial is without merit.
The Sentencing Claim
We likewise conclude Mendiburu's argument of error in connection with his
sentencing hearing is without merit. Mendiburu, citing Jacobs, supra, 156 Cal.App.4th
728 and People v. Strunk (1995) 31 Cal.App.4th 265, quotes Strunk as holding that
"[a]bsent . . . good cause shown, a defendant should be able to have the trial judge who
was familiar with the evidence at trial impose sentence." (Strunk, at pp. 275-276, fn. 13.)
However, the predicate to the general preference for the same judge to preside at the
sentencing hearing is whether there was "good cause shown" for a different judge to be
substituted, and the court below found "good cause" to replace Judge White with the new
judge. Mendiburu argues this determination was an abuse of discretion because there
37
was some indication Judge White might become available if sentencing was continued
another four to five months, and Mendiburu was willing to travel to Palm Desert (Judge
White's city of residence) to accommodate sentencing at that later date. However, the
court, after noting (1) the offenses had occurred in 2009, (2) the jury had returned its
verdict in August 2013, and (3) there had already been "more than [the] usual delay
between the time of trial and sentencing," concluded that "further extraordinary delay
would not be in the interest of justice." We conclude, considering the fact that
Mendiburu (despite having been convicted five months earlier) remained at liberty and
sought to remain so for at least another four to five months, the court's ruling that a
further (and lengthy) delay would not be "in the interests of justice" was not an abuse of
discretion, and therefore we hold the presiding judge's conclusion there was good cause
shown to substitute a different judge was not an abuse of discretion.12
VII
THE RESTITUTION CLAIM
Mendiburu asserts he was entitled to know the amount he would be required to
pay as "victim restitution" sometime before the court imposed sentence, and therefore the
12 For this reason, Mendiburu's reliance on Jacobs, supra, 156 Cal.App.4th 728 is
inapposite. The Jacobs court, after recognizing that granting a continuance to allow for
the trial judge to preside at sentencing will only be reversed for an abuse of discretion (id.
at pp. 735-736), concluded it was an abuse of discretion to deny a request for a
continuance to accommodate "the recognized preferred procedure that defendant be
sentenced by the trial judge [because] the trial judge was available on the following
Monday, necessitating a continuance of all of two days." (Id. at p. 740.) The length of
the delay alone distinguishes Jacobs from the instant case.
38
court improperly sentenced him prior to any hearing determining the amount of the
victim restitution order. Specifically, he argues that, because one of the enumerated
circumstances in mitigation that must be considered in selecting the sentence is whether
"[t]he defendant made restitution to the victim" (Cal. Rules of Court, rule 4.423(b)(5)),13
a defendant must be informed (at some undefined time before the court imposes
sentence) of the amount he is going to be required to pay to provide him with the
opportunity to pay such amount and thereby take advantage of that circumstance in
mitigation.
Section 1202.4, subdivision (f), provides that a court "shall require that the
defendant make restitution to the victim or victims in an amount established by court
order, based on the amount of loss claimed by the victim or victims or any other showing
to the court. If the amount of loss cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount shall be determined at the
direction of the court. . . ." The statutory scheme also provides that "when the economic
losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision
(f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a
restitution order for purposes of imposing or modifying restitution until such time as the
losses may be determined." (§ 1202.46.) As the court stated in People v. Bufford (2007)
146 Cal.App.4th 966, 971, "[u]nder a reading of the plain language of section 1202.4, if
the court cannot determine the amount of restitution at the time of sentencing, there is no
13 All rule references are to the California Rules of Court.
39
limitation upon when the court must next set a restitution hearing, nor is there a limitation
on the permissible reasons that may prevent fixing the amount of restitution."
Mendiburu's argument impliedly asserts Buford was wrongly decided, and the
statutory scheme governing restitution orders under section 1202.4 cannot be read
according to the literal words of the statute, because delaying a restitution hearing to a
date after sentencing is irreconcilable with the defendant's right to present the mitigating
evidence contemplated by rule 4.423(b)(5) that he paid restitution to the victim.
However, when construing a statute, our task is "to determine and give effect to the
Legislature's intent. [Citations.] ' "In determining such intent, a court must look first to
the words of the statute themselves, giving to the language its usual, ordinary import and
according significance, if possible, to every word, phrase and sentence in pursuance of
the legislative purpose. . . ." ' [Citation.] 'The words must be construed in context in
light of the nature and obvious purpose of the statute where they appear.' [Citation.] The
statute 'must be given a reasonable and commonsense interpretation consistent with the
apparent purpose and intention of the Legislature, practical rather than technical in
nature, and which, when applied, will result in wise policy rather than mischief or
absurdity.' [Citation.] [¶] Potentially conflicting statutes must be harmonized whenever
possible." (Barker v. Brown & Williamson Tobacco Corp. (2001) 88 Cal.App.4th 42,
46.)
Mendiburu's reading of the interplay between the sentencing factor under rule
4.423(b)(5) and the restitution statute is inconsistent with the apparent intent that the
restitution order contemplated by section 1202.4, subdivision (f), be imposed at the time
40
of sentencing. The statutory scheme, which authorizes imposition of the victim
restitution, includes the proviso that the court may defer entering that order if "the
amount of loss cannot be ascertained at the time of sentencing" (ibid.), and also provides
that if such losses cannot be determined "at the time of sentencing pursuant to subdivision
(f) of Section 1202.4" the court shall retain jurisdiction to enter a later order.
(§ 1202.46.) These provisions impliedly contemplate entry of the restitution order as
part of the sentencing hearing. Mendiburu's argument, however, is that the order must be
entered well in advance of sentencing to provide time for the defendant to marshal his
resources and pay that amount so that he can then be positioned to argue (at the later
sentencing hearing) that he satisfied rule 4.423(b)(5).
We disagree that rule 4.423(b)(5), impliedly requires the victim restitution hearing
to be held well in advance of the sentencing hearing, and we instead harmonize the
interplay between rule 4.423(b)(5), and section 1202.4, subdivision (f), by interpreting
the former as permitting a defendant to argue in mitigation that he "made restitution to
the victim" voluntarily rather than under the compulsion of any court-ordered restitution.
Under our construction, the phrase "made restitution to the victim" as used in rule
4.423(b)(5) is not referring to conduct by a defendant acting under compulsion of a court
order entered under section 1202.4, subdivision (f), but is instead referring to voluntary
conduct (much like the factor in mitigation contained in rule 4.423(b)(3) ["defendant
voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal
process"]) by the defendant. This construction thus preserves the right of a defendant
who makes restitution before sentencing to cite that fact in mitigation at sentencing (see
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People v. Hughes (1980) 112 Cal.App.3d 452) without undermining the apparent intent
of the statute that victim restitution orders be entered at, or when necessary after,
sentencing.
DISPOSITION
The judgment of conviction on count 1 is reversed, and in all other respects the
judgment of conviction is affirmed. The matter is remanded for resentencing on the
remaining convictions.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
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